[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Notices]
[Page 54442-54444]
[DOCID:fr19se08-108]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58550; File No. SR-NYSE-2008-68]

Self-Regulatory Organizations; New York Stock Exchange LLC; Order
Approving Proposed Rule Change To Determine That a Company Meets the
Exchange's Market Value Requirements by Relying on a Third-Party
Valuation of the Company

September 15, 2008.

I. Introduction

    On July 31, 2008, the New York Stock Exchange LLC (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to allow the Exchange, on a case by case basis, to
exercise discretion to list a company whose stock is not previously
registered under the Act and that is listing upon effectiveness of a
selling shareholder registration statement without a related
underwritten offering, by relying on an independent third-party
valuation of the company and information regarding trading in a private
placement trading market to determine that such a company has met its
market value requirements. The proposed rule change was published for
comment in the Federal Register on August 11, 2008.\3\ The Commission
received no comments on the proposal. This order approves the proposed
rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58299 (August 4,
2008), 73 FR 46670.
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II. Description of the Proposal

    Section 102.01B of the Exchange's Listed Company Manual
(``Manual'') currently requires that companies listing on the Exchange
in connection with their initial public offering (``IPO'') or as a
result of a spin-off or under the Affiliated Company standard must
demonstrate an aggregate market value of publicly-held shares of $60
million at the time of listing. All other companies must demonstrate a
market value of publicly-held shares of $100 million.\4\ In addition,
the Valuation/Revenue with Cash Flow, Pure Valuation/Revenue, and
Affiliated Company standards of Section 102.01C require a company to
have a global market capitalization of $500 million, $750 million, and
$500 million, respectively. Sections 102.01B and 102.01C of the Manual
provide that, in connection with a company's IPO, the Exchange will
rely on a written commitment from the underwriter to represent the
anticipated value of the company's offering in order to determine a
company's compliance with these listing standards. In the case of a
spin-off, the company may rely on a letter from the parent company's
investment banker or other financial adviser.
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    \4\ Shares held by directors, officers, or their immediate
families and other concentrated holding of 10 percent or more are
excluded in calculating the number of publicly-held shares.
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    The Exchange notes that it has been approached by a number of
private companies that would like to list upon the effectiveness of a
selling shareholder registration statement. NYSE represents that these
private companies typically have sold a significant amount of common
stock to qualified institutional buyers in one or more private
placements and, as a condition to those sales, have agreed to file a
registration statement to facilitate the resale of the privately-placed
shares. These companies have not had any prior public market for their
common stock and are not contemplating an underwritten offering in
connection with their selling shareholder registration statement. As
such, the company would not be able to obtain a written representation
from an underwriter to determine compliance with the market value
requirements, as a company would in the case of an IPO, and the
Exchange cannot rely on trading on any predecessor public market to
evaluate the company's market value, as would be possible with a
company transferring from another market. Thus, while the company may
meet all of the Exchange's other listing criteria, the company would
not be able to satisfy NYSE's current market value requirements in
Sections 102.01B and 102.01C of the Manual.
    The Exchange proposes to amend Sections 102.01B and 102.01C of the
Manual to provide that the Exchange will, on a case by case basis,
exercise discretion to list a company whose stock is not previously
registered under the Exchange Act, where such company is listing,
without a related underwritten offering, upon effectiveness of a

registration statement registering only the resale of shares sold by
the company in earlier private placements. Specifically, the Exchange
proposes that, for such companies, the Exchange will have the
discretion to determine that the company has met the applicable market
value requirements by attributing a market value to the company equal
to the lesser of: (i) The value calculated based on an independent
third-party valuation of the company (``Valuation''); and (ii) the
value calculated based on the most recent trading price of the
company's common stock in a trading system for unregistered securities
operated by a national securities exchange or a registered broker-
dealer (``Private Placement Market'').
    The proposed rule change further provides that any Valuation used
for this purpose must be provided by an entity that has significant
experience and demonstrable competence in the provision of such
valuations. The Valuation must be of a recent date as of the time of
the approval of the company for listing, and the evaluator must have
considered, among other factors, the annual financial statements
required to be included in the registration statement and the financial
statements for any completed fiscal quarters subsequent to the end of
the last year of audited financials included in the registration
statement.
    The proposed rule change also provides that the Exchange will
consider any market factors, or factors particular to the listing
applicant, that would cause concern that the value of the company had
diminished since the date of the Valuation. In addition, the Exchange
will continue to monitor the company and the appropriateness of relying
on the Valuation up to the time of listing. In particular, the Exchange
will examine the trading price trends for the stock in the Private
Placement Market over a period of several months prior to listing and
will only rely on a Private Placement Market price if it is consistent
with a sustained history over that several month period evidencing a
market value in excess of the applicable standard. The Exchange may
withdraw its approval of the listing at any time prior to the listing
date if it believes that the Valuation no longer accurately reflects
the company's likely market value.
    Companies listed on the basis of these new provisions will be
required to meet the $100 million test applied to companies
transferring from another market under Section 102.01B, rather than the
$60 million IPO standard. Companies listing under the Valuation/Revenue
with Cash Flow standard of Section 102.01C(II)(a) of the Manual and the
Affiliated Company standard of Section 102.01C(III) will be required to
have a global market capitalization of $600 million, rather than the
usual $500 million requirement. Companies listing under the Pure
Valuation/Revenue standard of Section 102.01C(II)(b) will be required
to have $900 million of global market capitalization, rather than the
usual $750 million requirement.
    The Exchange also notes that any company listing in reliance upon
this proposed amendment will still be required to meet the IPO
distribution requirements of Section 102.01A, i.e., 400 beneficial
holders of round lots of 100 shares and 1,100,000 publicly held shares.
The Exchange states that it will rely upon information provided by the
company's transfer agent in determining whether the company meets the
holder requirement. The Exchange also states that it will be able to
determine compliance with the 1,100,000 publicly held shares
requirement by reviewing the disclosure in the company's registration
statement.

III. Discussion

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange
and, in particular, with Section 6(b) of the Act \5\ and the rules and
regulations thereunder. Specifically, the Commission finds that the
proposed rule change is consistent with Section 6(b)(5) of the Act \6\
which requires, among other things, that the rules of a national
securities exchange be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to remove impediments to, and perfect the mechanism of, a free and open
market and a national market system, to protect investors and the
public interest, and are not designed to permit unfair discrimination
between customers, issuers, brokers or dealers.\7\
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    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
    \7\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
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    The development and enforcement of adequate standards governing the
initial and continued listing of securities on an exchange is an
activity of critical importance to financial markets and the investing
public. Listing standards, among other things, serve as a means for an
exchange to screen issuers and to provide listed status only to bona
fide companies that have or, in the case of an IPO, will have
sufficient public float, investor base, and trading interest to provide
the depth and liquidity necessary to promote fair and orderly markets.
Adequate standards are especially important given the expectations of
investors regarding exchange trading and the imprimatur of listing on a
particular market. Once a security has been approved for initial
listing, maintenance criteria allow an exchange to monitor the status
and trading characteristics of that issue to ensure that it continues
to meet the exchange's standards for market depth and liquidity so that
fair and orderly markets can be maintained.
    The Commission believes that the proposed rule change will provide
a means for a narrow category of companies whose stock is not
previously registered under the Act and that are listing upon
effectiveness of a selling shareholder registration statement, without
a related underwritten offering, to list on the Exchange. In
particular, for such companies that otherwise meet NYSE's listing
standards,\8\ the proposed rule change will allow the Exchange to have
the discretion to determine that a company has met the market value
requirement by attributing a market value to the company equal to the
lesser of the value calculated based on a third-party Valuation and the
value calculated based on the most recent trading price in a Private
Placement Market. The Commission believes that using the lesser of
these values to determine the market value of the company provides a
reasonable means of assessing the market value of the company in these
special circumstances where a company's stock is not previously
registered under the Act and is listing upon effectiveness of a selling
shareholder registration statement, without a related underwritten
offering.
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    \8\ Companies listing upon an effective registration statement
would have to meet the distribution requirements set forth in
Section 102.01A and comply with all applicable NYSE corporate
governance requirements.
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    The Commission recognizes that each value, by itself, has
limitations. As NYSE noted in its proposal, the Valuation is only an
estimate of what a company's true market value will be upon
commencement of public trading. Further, the most recent trading price
in a Private Placement Market may be an imperfect indication as to the
value of a security upon listing, in part because the Private Placement
Markets generally do not have the depth and liquidity and price
discovery mechanisms found on public trading markets. However,

recognizing these limitations, the Commission agrees with the Exchange
that consideration of both of these values should provide the Exchange
with an estimation of a company's market value that supports listing
the company on the Exchange. In addition, the proposed rule is designed
to ensure that the Valuation is reliable by providing that the
Valuation must be provided by an entity that has significant experience
and demonstrable competence in providing valuations of companies, and
must be of a recent date as of the time of the approval of the company
for listing. Further, by assuming a market value equal to the lesser of
the Valuation and a value based on the most recent Private Placement
Market trading, the Exchange will be using the more conservative
estimate of a company's market value.
    In addition, the Commission notes that companies listing under this
alternative provision will be required to meet higher market value
standards. Specifically, companies will have to meet the $100 million
transfer market value requirement, rather than the $60 million IPO
requirement of Section 102.01B. Further, companies will be required to
meet global market capitalization standards in Section 102.01C of the
Manual that are 20% higher than the normal standards.\9\
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    \9\ See Section II, Description of the Proposal, supra.
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    The Commission notes that it expects the vast majority of companies
to continue to list in connection with a firm commitment underwritten
IPO, upon transfer from another market, or pursuant to a spin-off, and
that this proposed alternative standard will be used by the Exchange at
its discretion. In particular, in accordance with the terms of the
proposed rule, the Exchange will apply this standard only for the very
narrow category of companies that are seeking to list their common
equity securities on the Exchange without an underwritten offering at
the time of effectiveness of a registration statement registering only
the resale of shares sold by the company in earlier private placements.
Further, the Commission expects the Exchange to utilize its discretion
only after thorough consideration and evaluation of the specific
company and all relevant factors. Specifically, the proposed rule
change requires the Exchange to consider the appropriateness of relying
on Private Placement Market trading in light of the price trends for
the stock over a period of several months and only rely on a Private
Placement Market price if consistent with a sustained history
evidencing a market value in excess of the listing requirement. In
relying on such Private Placement Market, the Commission expects the
NYSE to consider the trading characteristics of the stock, including
its trading volume and price volatility over a sustained period of
time. In addition, in relying on the Valuation, the Exchange must
consider any market factors or factors particular to the listing
applicant that would cause concern that the value of the company had
diminished since the date of Valuation and continue to monitor the
company and the appropriateness of relying on the Valuation up until
the time of listing. The Commission expects that where these factors
indicate that the value calculated may not be an accurate estimation of
a company's market value, the Exchange will use its discretion to
determine not to list such company pursuant to the proposed provisions.
In general, the Commission expects that the Exchange will deny listing
to any company seeking to list pursuant to the proposed rule change if
the Exchange determines that the listing of any such company is not in
the interests of the Exchange or the public interest.
    The Commission also notes that companies listing pursuant to the
new proposed provision will still be required to meet the IPO
distribution requirements of Section 102.01A of the Manual, i.e., that
the company have 400 beneficial holders of round lots of 100 shares and
1,100,000 publicly held shares. The Commission believes that these
existing provisions will continue to help ensure that the company has
the requisite liquidity for listing on the Exchange.\10\ The Exchange's
reliance on the transfer agent for assurance that the holder
requirement is met, and on the disclosure in the company's registration
statement for assurance that the publicly held shares requirement is
met, will ensure that these important liquidity requirements are
verified before a company may qualify for listing.
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    \10\ See also note 8 supra. The Commission notes that once
listed, the company would have to comply with the continued listing
standards like other companies. The NYSE has not proposed any
changes to the continued listing standards for companies listing
under the provisions approved herein. See Section 802 of the Manual.
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    For the reasons set forth above, the Commission finds that the
proposed rule change is consistent with the Act.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\11\ that the proposed rule change (SR-NYSE-2008-68) be, and hereby
is, approved.
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    \11\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-21944 Filed 9-18-08; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 77, Number 210 (Tuesday, October 30, 2012)]
[Proposed Rules]
[Pages 65656-65661]
[FR Doc No: 2012-26651]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0752; FRL-9746-8]

Determination of Attainment for the Nogales Nonattainment Area
for the 2006 Fine Particle Standard; Arizona; Determination Regarding
Applicability of Clean Air Act Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Nogales nonattainment
area in Arizona has attained the 2006 24-hour fine particle
(PM2.5) National Ambient Air Quality Standard (NAAQS). This
proposed determination is based upon complete, quality-assured, and
certified ambient air monitoring data showing that the area has
monitored attainment of the 2006 24-hour PM2.5 NAAQS based
on the 2009-2011 monitoring period. EPA is further proposing that, if
EPA finalizes this determination of attainment, the requirements for
the area to submit an attainment demonstration, together with
reasonably available control measures (RACM), a reasonable further
progress (RFP) plan, and contingency measures for failure to meet RFP
and attainment deadlines shall be suspended for so long as the area
continues to attain the 2006 24-hour PM2.5 NAAQS.

DATES: Written comments must be received on or before November 29,
2012.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2012-0752 by one of the following methods:
    1. Federal eRulemaking Portal, at www.regulations.gov, please
follow the on-line instructions;
    2. Email to<EMAIL_ADDRESS>or
    3. Mail or delivery to John Ungvarsky, Air Planning Office, AIR-2,
U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street,
San Francisco, California 94105-3901.
    Instructions: All comments will be included in the public docket
without change and may be made available online at www.regulations.gov,
including any personal information provided, unless the comment
includes Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Information you consider to
be CBI or otherwise protected should be clearly identified as such and
should not be submitted through www.regulations.gov or email.
www.regulations.gov is an ``anonymous access'' system, and EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an email directly to EPA, your email
address will be automatically captured and included as part of the
public comment. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region
IX, 75 Hawthorne Street, San Francisco, California. While all documents
in the docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).
To inspect the hard copy materials, please schedule an appointment
during normal business hours with the contact listed in the FOR FURTHER
INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: John Ungvarsky,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, wherever ``we'',
``us'' or ``our'' are used, we mean EPA. We are providing the following
outline to aid in locating information in this proposal.

Table of Contents

I. What determination is EPA making?
II. What is the background for this action?
    A. PM2.5 NAAQS
    B. Designation of PM2.5 Nonattainment Areas
    C. How Does EPA Make Attainment Determinations?
III. What is EPA's analysis of the relevant air quality data?
    A. Monitoring Network and Data Considerations
    B. Evaluation of Current Attainment
IV. How does EPA's Clean Data Policy apply to this action?
    A. Application of EPA's Clean Data Policy to the 2006
PM2.5 NAAQS
    B. History and Basis of EPA's Clean Data Policy
V. EPA's Proposed Action and Request for Public Comment
VI. Statutory and Executive Order Reviews

I. What determination is EPA making?

    EPA is proposing to determine that the Nogales nonattainment area
has clean data for the 2006 24-hour NAAQS for fine particles (generally
referring to particles less than or equal to 2.5 micrometers in
diameter, PM2.5). This determination is based upon complete,
quality-assured, and certified ambient air monitoring data showing the
area has monitored attainment of the 2006 PM2.5 NAAQS based
on 2009-2011 monitoring data. Preliminary data in EPA's Air Quality
System (AQS) for 2012 indicate that the area continues to attain the
2006 PM2.5 NAAQS. Based on this determination, we are also
proposing to suspend the obligations on

the State of Arizona to submit certain state implementation plan (SIP)
revisions related to attainment of this standard for the area for as
long as the area continues to attain the standard.

II. What is the background for this action?

A. PM2.5 NAAQS

    Under section 109 of the Clean Air Act (CAA or ``Act''), EPA has
established national ambient air quality standards (NAAQS or
``standards'') for certain pervasive air pollutants (referred to as
``criteria pollutants'') and conducts periodic reviews of the NAAQS to
determine whether they should be revised or whether new NAAQS should be
established.
    On July 18, 1997, EPA revised the NAAQS for particulate matter to
add new standards for PM2.5, using PM2.5 as the
indicator for the pollutant. EPA established primary and secondary\1\
annual and 24-hour standards for PM2.5 (62 FR 38652). The
annual standard was set at 15.0 micrograms per cubic meter ([mu]g/
m\3\), based on a 3-year average of annual mean PM2.5
concentrations, and the 24-hour standard was set at 65 [mu]g/m\3\,
based on the 3-year average of the 98th percentile of 24-hour
PM2.5 concentrations at each population-oriented monitor
within an area.
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    \1\ For a given air pollutant, ``primary'' national ambient air
quality standards are those determined by EPA as requisite to
protect the public health, and ``secondary'' standards are those
determined by EPA as requisite to protect the public welfare from
any known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. See CAA section
109(b).
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    On October 17, 2006 (71 FR 61144), EPA revised the level of the 24-
hour PM2.5 NAAQS to 35 [mu]g/m\3\, based on a 3-year average
of the 98th percentile of 24-hour concentrations. EPA also retained the
1997 annual PM2.5 standard at 15.0 [mu]g/m\3\ based on a 3-
year average of annual mean PM2.5 concentrations, but with
tighter constraints on the spatial averaging criteria.

B. Designation of PM2.5 Nonattainment Areas

    Effective December 14, 2009, EPA established the initial air
quality designations for most areas in the United States for the 2006
24-hour PM2.5 NAAQS. See 74 FR 58688; (November 13, 2009).
Among the various areas designated in 2009, EPA designated the Nogales
\2\ area in Arizona as nonattainment for the 2006 24-hour
PM2.5 NAAQS.\3\ The boundaries for the nonattainment area
are described in 40 CFR 81.303.
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    \2\ Covering 76.1 square miles, the Nogales PM2.5
nonattainment area is located within Santa Cruz County, Arizona,
with the southernmost boundary of the nonattainment area and Santa
Cruz County being the U.S./Mexico border.
    \3\ With respect to the annual PM2.5 NAAQS, this area
is designated as ``unclassifiable/attainment.''
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    Within three years of the effective date of designations, states
with areas designated as nonattainment for the 2006 PM2.5
NAAQS are required to submit SIP revisions that, among other elements,
provide for implementation of reasonably available control measures
(RACM), reasonable further progress (RFP), attainment of the standard
as expeditiously as practicable but no later than five years from the
nonattainment designation (in this instance, no later than December 14,
2014), as well as contingency measures. See CAA section 172(a)(2),
172(c)(1), 172(c)(2), and 172(c)(9). Prior to the due date for
submittal of these SIP revisions, the State of Arizona requested that
EPA make a determination that the Nogales \4\ nonattainment area has
attained the 2006 PM2.5 NAAQS. Today's proposal responds to
the State's request.
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    \4\ On July 6, 2012, in an email to Lisa Hanf, Manager, Planning
Office, Air Division, U.S. EPA Region IX, Diane Arnst, Planning
Section Manager, Air Quality Division, Arizona Department of
Environmental Quality, requested that EPA determine whether the
Nogales PM2.5 nonattainment area qualified for a
determination of attainment for the 2006 24-hour PM2.5
NAAQS.
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C. How Does EPA Make Attainment Determinations?

    A determination of whether an area's air quality currently meets
the PM2.5 NAAQS is generally based upon the most recent
three years of complete, quality-assured data gathered at established
State and Local Air Monitoring Stations (SLAMS) in a nonattainment area
and entered into the AQS database. Data from air monitors operated by
state/local agencies in compliance with EPA monitoring requirements
must be submitted to AQS. Monitoring agencies annually certify that
these data are accurate to the best of their knowledge. Accordingly,
EPA relies primarily on data in AQS when determining the attainment
status of areas. See 40 CFR 50.13; 40 CFR part 50, appendix L; 40 CFR
part 53; 40 CFR part 58, and 40 CFR part 58, appendices A, C, D, and E.
All data are reviewed to determine the area's air quality status in
accordance with 40 CFR part 50, appendix N.
    Under EPA regulations in 40 CFR part 50, section 50.13 and in
accordance with appendix N, the 2006 24-hour PM2.5 standard
is met when the design value is less than or equal to 35 [mu]g/m\3\
(based on the rounding convention in 40 CFR part 50, appendix N) at
each monitoring site within the area.\5\ The PM2.5 24-hour
average is considered valid when 75 percent of the hourly averages for
the 24-hour period are available. Data completeness requirements for a
given year are met when at least 75 percent of the scheduled sampling
days for each quarter have valid data.
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    \5\ The 24-hour PM2.5 standard design value is the 3-
year average of annual 98th percentile 24-hour average values
recorded at each monitoring site [see 40 CFR part 50, appendix N,
section 1.0(c)], and the 24-hour PM2.5 NAAQS is met when
the 24-hour standard design value at each monitoring site is less
than or equal to 35 [mu]g/m\3\.
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III. What is EPA's analysis of the relevant air quality data?

A. Monitoring Network and Data Considerations

    The Arizona Department of Environmental Quality (ADEQ) is the
governmental agency with the authority and responsibility under state
law for collecting ambient air quality data within the Nogales
nonattainment area. Annually, ADEQ submits monitoring network plans to
EPA. These plans discuss the status of the air monitoring network, as
required under 40 CFR part 58. EPA reviews these annual network plans
for compliance with the applicable reporting requirements in 40 CFR
58.10. With respect to PM2.5, we have found that ADEQ's
annual network plans meet the applicable requirements under 40 CFR part
58.\6\ Furthermore, we concluded in our Technical System Audit Report
concerning ADEQ's ambient air quality monitoring program that ADEQ's
ambient air monitoring network currently meets or exceeds the
requirements for the minimum number of monitoring sites designated as
SLAMS for PM2.5 in the Nogales nonattainment area.\7\ Also,
ADEQ annually certifies that the data it submits to AQS are quality-
assured.\8\
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    \6\ Letter from Joe Lapka, Acting Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Nancy Wrona, Director, Air Quality
Division, ADEQ (November 12, 2009) (approving ADEQ's ``Final Report
of the State of Arizona Air Monitoring Network Plan for the Year
2009''); Letter from Matthew Lakin, Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality
Division, ADEQ (December 10, 2010) (approving ADEQ's ``Final Report
of the State of Arizona Air Monitoring Network Plan for the Year
2010''); Letter from Matthew Lakin, Manager, Air Quality Analysis
Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality
Division, ADEQ (December 1, 2011) (approving ADEQ's ``State of
Arizona Air Monitoring Network Plan: For the Year 2011'').
    \7\ Technical System Audit Report transmitted via correspondence
dated September 23, 2010, from Deborah Jordan, Director, Air
Division, EPA Region IX, to Eric Massey, Air Division, ADEQ.
    \8\ See, e.g., the letter from Eric C. Massey, Director, Air
Quality Division, ADEQ to Deborah Jordan, Director, Air Division,
EPA Region IX, dated September 21, 2012 certifying the ambient air
quality data collected for year 2011.

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    There was one PM2.5 SLAMS operating during the 2009-2011
period in the Nogales PM2.5 nonattainment area. This site
has been monitoring PM2.5 concentrations since 1999 with a
one-in-six-day sampling frequency. EPA defines specific monitoring site
types and spatial scales of representativeness to characterize the
nature and location of required monitors. The monitor's spatial scale
is neighborhood scale,\9\ and its monitoring objective (site type) is
population exposure.\10\
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    \9\ In this context, ``neighborhood'' spatial scale defines
concentrations within some extended area of the city that has
relatively uniform land use with dimensions in the 0.5 to 4.0
kilometers range. See 40 CFR part 58, appendix D, section 1.2.
    \10\ State of Arizona Air Monitoring Network Plan for the Year
2012, Final Report, August 1, 2012. ADEQ also operates a co-located
PM2.5 monitor at the Nogales monitoring site. The co-
located monitor also collects samples on a one-day-in-six schedule.
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    For the purposes of this proposed action, we have reviewed the data
for the most recent three-year period (2009-2011) for completeness, and
we determined that the data collected by ADEQ meets the completeness
criterion for all 12 quarters at the Nogales PM2.5 monitor.
While we consider the PM2.5 data set for 2009-2011 to be
complete for the purposes of determining whether the area has attained
the standard, we have also determined that, under our monitoring
regulations, ADEQ should be sampling PM2.5 on a one-in-three
day schedule rather than at the current one-in-six day schedule because
the co-located PM2.5 monitor at the Nogales site is not a
continuously operating monitor, and under those circumstances, a
sampling frequency of at least one day in every three is required under
40 CFR 58.12(d)(1). ADEQ has agreed to increase the monitoring
frequency at the Nogales monitoring site to meet the requirements of 40
CFR 58.12(d)(1), beginning January 2013.\11\ The increased number of
samples would provide sufficient information to evaluate the area's
continued attainment of the 2006 PM2.5 NAAQS if we finalize
this proposed determination of attainment for the Nogales nonattainment
area.
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    \11\ See ADEQ's September 11, 2012 letter to Matthew Lakin,
Manager, Air Quality Analysis Office, EPA Region IX, from Eric
Massey, Director, Air Quality Division, ADEQ.
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B. Evaluation of Current Attainment

    EPA's evaluation of whether the Nogales PM2.5
nonattainment area has attained the 2006 24-hour PM2.5 NAAQS
is based on our review of the monitoring data and takes into account
the adequacy of the PM2.5 monitoring network in the
nonattainment area and the reliability of the data collected by the
network as discussed in the previous section of this document.
    Table 1 shows the PM2.5 design values for the Nogales
nonattainment area monitor based on ambient air quality monitoring data
for the most recent complete three-year period (2009-2011). The data
show that the design value for the 2009-2011 period was equal to or
less than 35 [mu]g/m\3\ at the monitor. Therefore, we are proposing to
determine, based on the complete, quality-assured data for 2009-2011,
that the Nogales area has attained the 2006 24-hour PM2.5
standard. Preliminary data available in AQS for 2012 indicate that the
area continues to attain the standard.

                          Table 1--2009-2011 24-Hour PM2.5 Monitoring Site and Design Value for the Nogales Nonattainment Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                98th Percentile ([mu]g/m\3\)               2009-2011
                         Monitoring site                               AQS site      ---------------------------------------------------  design values
                                                                  identification No.        2009             2010             2011         ([mu]g/m\3\)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Nogales Post Office.............................................        04-023-0004             29.7             31.6             27.2               30
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Design Value Report, August 14, 2012 (in the docket to this proposed action).

IV. How does EPA's Clean Data Policy apply to this action?

A. Application of EPA's Clean Data Policy to the 2006 PM2.5 NAAQS

    In April 2007, EPA issued its PM2.5 Implementation Rule
for the 1997 PM2.5 standard. 72 FR 20586; (April 25, 2007).
In March, 2012, EPA published implementation guidance for the 2006
PM2.5 standard. See Memorandum from Stephen D. Page,
Director, Office of Air Quality Planning and Standards,
``Implementation Guidance for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS)''
(March 2, 2012). In that guidance, EPA stated its view ``that the
overall framework and policy approach of the 2007 PM2.5
Implementation Rule continues to provide effective and appropriate
guidance on the EPA's interpretation of the general statutory
requirements that states should address in their SIPs. In general, the
EPA believes that the interpretations of the statute in the framework
of the 2007 PM2.5 Implementation Rule are relevant to the
statutory requirements for the 2006 24-hour PM2.5 NAAQS * *
*.'' Id., page 1. With respect to the statutory provisions applicable
to 2006 PM2.5 implementation, the guidance emphasized that
``EPA outlined its interpretation of many of these provisions in the
2007 PM2.5 Implementation Rule. In addition to regulatory
provisions, the EPA provided substantial general guidance for
attainment plans for PM2.5 in the preamble to the final the
[sic] 2007 PM2.5 Implementation Rule.'' Id., page 2. In
keeping with the principles set forth in the guidance, and with respect
to the effect of a determination of attainment for the 2006
PM2.5 standard, EPA is applying the same interpretation with
respect to the implications of clean data determinations that it set
forth in the preamble to the 1997 PM2.5 standard and in the
regulation that embodies this interpretation. 40 CFR 51.1004(c).\12\
EPA has long applied this interpretation in regulations and individual
rulemakings for the 1-hour ozone and 1997 8-hour ozone standards, the
PM-10 standard, and the lead standard.
---------------------------------------------------------------------------

    \12\ While EPA recognizes that 40 CFR 51.1004(c) does not itself
expressly apply to the 2006 PM2.5 standard, the statutory
interpretation that it embodies is identical and is applicable to
both the 1997 and 2006 PM2.5 standards.
---------------------------------------------------------------------------

B. History and Basis of EPA's Clean Data Policy

    Following enactment of the CAA Amendments of 1990, EPA promulgated
its interpretation of the requirements for implementing the NAAQS in
the General Preamble for the Implementation of Title I of the CAA
Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16,
1992). In 1995, based on the interpretation of CAA sections 171 and
172, and section 182 in the General Preamble, EPA set forth what has
become known as its ``Clean Data Policy'' for the 1-hour ozone NAAQS.
See Memorandum from John S. Seitz, Director, Office of Air Quality
Planning and Standards, ``Reasonable Further

Progress, Attainment Demonstration, and Related Requirements for Ozone
Nonattainment Areas Meeting the Ozone National Ambient Air Quality
Standard'' (May 10, 1995). In 2004, EPA indicated its intention to
extend the Clean Data Policy to the PM2.5 NAAQS. See
Memorandum from Steve Page, Director, EPA Office of Air Quality
Planning and Standards, ``Clean Data Policy for the Fine Particle
National Ambient Air Quality Standards'' (December 14, 2004).
    Since 1995, EPA has applied its interpretation under the Clean Data
Policy in many rulemakings, suspending certain attainment-related
planning requirements for individual areas, based on a determination of
attainment. See 60 FR 36723 (July 18, 1995) (Salt Lake and Davis
Counties, Utah, 1-hour ozone); 61 FR 20458 (May 7, 1996) (Cleveland-
Akron-Lorain, Ohio, 1-hour ozone); 61 FR 31832 (June 21, 1996) (Grand
Rapids, Michigan, 1-hour ozone); 65 FR 37879 (June 19, 2000)
(Cincinnati-Hamilton, Ohio-Kentucky, 1-hour ozone); 66 FR 53094
(October 19, 2001) (Pittsburgh-Beaver Valley, Pennsylvania, 1-hour
ozone); 68 FR 25418 (May 12, 2003) (St. Louis, Missouri-Illinois, 1-
hour ozone); 69 FR 21717 (April 22, 2004) (San Francisco Bay Area,
California, 1-hour ozone); 75 FR 6570 (February 10, 2010) (Baton Rouge,
Louisiana, 1-hour ozone); 75 FR 27944 (May 19, 2010) (Coso Junction,
California, PM10).
    EPA also incorporated its interpretation under the Clean Data
Policy in several implementation rules. See Clean Air Fine Particle
Implementation Rule, 72 FR 20586 (April 25, 2007); Final Rule To
Implement the 8-Hour Ozone National Ambient Air Quality Standard--Phase
2, 70 FR 71612 (November 29, 2005). The Court of Appeals for the
District of Columbia Circuit (DC Circuit) upheld EPA's rule embodying
the Clean Data Policy for the 1997 8-hour ozone standard. NRDC v. EPA,
571 F.3d 1245 (DC Cir. 2009). Other courts have reviewed and considered
individual rulemakings applying EPA's Clean Data Policy, and have
consistently upheld them in every case. Sierra Club v. EPA, 99 F.3d
1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir.
2004); Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir.
June 28, 2005 (Memorandum Opinion)), Latino Issues Forum v. EPA, Nos.
06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)).
    EPA sets forth below a brief explanation of the statutory
interpretations in the Clean Data Policy. EPA also incorporates the
discussions of its interpretation set forth in prior rulemakings,
including the 1997 PM2.5 implementation rulemaking. See 72
FR 20586, at 20603-20605 (April 25, 2007). See also 75 FR 31288 (June
3, 2010) (Providence, Rhode Island, 1997 8-hour ozone); 75 FR 62470
(October 12, 2010) (Knoxville, Tennessee, 1997 8-hour ozone); 75 FR
53219 (August 31, 2010) (Greater Connecticut Area, 1997 8-hour ozone);
75 FR 54778 (September 9, 2010) (Baton Rouge, Louisiana, 1997 8-hour
ozone); 75 FR 64949 (October 21, 2010) (Providence, Rhode Island, 1997
8-hour ozone); 76 FR 11080 (March 1, 2011) (Milwaukee-Racine and
Sheboygan Areas, Wisconsin, 1997 8-hour ozone); 76 FR 31237 (May 31,
2011) (Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hour ozone); 76
FR 33647 (June 9, 2011) (St. Louis, Missouri-Illinois, 1997 8-hour
ozone); 76 FR 70656 (November 15, 2011) (Charlotte-Gastonia-Rock Hill,
North Carolina-South Carolina, 1997 8-hour ozone); 77 FR 31496 (May 29,
2012) (Boston-Lawrence-Worchester, Massachusetts, 1997 8-hour ozone).
See also, 75 FR 56 (January 4, 2010) (Greensboro-Winston-Salem-High
Point, North Carolina, 1997 PM2.5); 75 FR 230 (January 5,
2010) (Hickory-Morganton-Lenoir, North Carolina, 1997
PM2.5); 76 FR 12860 (March 9, 2011) (Louisville, Kentucky-
Indiana, 1997 PM2.5); 76 FR 18650 (April 5, 2011) (Rome,
Georgia, 1997 PM2.5); 76 FR 31239 (May 31, 2011)
(Chattanooga, Tennessee-Georgia-Alabama, 1997 PM2.5); 76 FR
31858 (June 2, 2011) (Macon, Georgia, 1997 PM2.5); 76 FR
36873 (June 23, 2011) (Atlanta, Georgia, 1997 PM2.5); 76 FR
38023 (June 29, 2011) (Birmingham, Alabama, 1997 PM2.5); 76
FR 55542 (September 7, 2011) (Huntington-Ashland, West Virginia-
Kentucky-Ohio, 1997 PM2.5); 76 FR 60373 (September 29, 2011)
(Cincinnati, Ohio-Kentucky-Indiana, 1997 PM2.5); 77 FR 18922
(March 29, 2012) (Harrisburg-Lebanon-Carlisle-York, Allentown,
Johnstown and Lancaster, Pennsylvania, 1997 PM2.5).
    The Clean Data Policy represents EPA's interpretation that certain
requirements of subpart 1 of part D of the Act are by their terms not
applicable to areas that are currently attaining the NAAQS.\13\ As
explained below, the specific requirements that are inapplicable to an
area attaining the standard are the requirements to submit a SIP that
provides for: attainment of the NAAQS; implementation of all reasonably
available control measures; reasonable further progress (RFP); and
implementation of contingency measures for failure to meet deadlines
for RFP and attainment.
---------------------------------------------------------------------------

    \13\ This discussion refers to subpart 1 because subpart 1
contains the requirements relating to attainment of the 2006
PM2.5 NAAQS.
---------------------------------------------------------------------------

    CAA section 172(c)(1), the requirement for an attainment
demonstration, provides in relevant part that SIPs ``shall provide for
attainment of the [NAAQS].'' EPA has interpreted this requirement as
not applying to areas that have already attained the standard. If an
area has attained the standard, there is no need to submit a plan
demonstrating how the area will reach attainment. In the General
Preamble (57 FR 13564), EPA stated that no other measures to provide
for attainment would be needed by areas seeking redesignation to
attainment since ``attainment will have been reached.'' See also
Memorandum from John Calcagni, ``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' (September 4, 1992), at page 6.
    A component of the attainment plan specified under section
172(c)(1) is the requirement to provide for ``the implementation of all
reasonably available control measures as expeditiously as practicable''
(RACM). Since RACM is an element of the attainment demonstration, see
General Preamble (57 FR 13560), for the same reason the attainment
demonstration no longer applies by its own terms, RACM also no longer
applies to areas that EPA has determined have clean air. Furthermore,
EPA has consistently interpreted this provision to require only
implementation of such potential RACM measures that could advance
attainment.\14\ Thus, where an area is already attaining the standard,
no additional RACM measures are required. EPA's interpretation that the
statute requires only implementation of the RACM measures that would
advance attainment was upheld by the United States Court of Appeals for
the Fifth Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745, 5th Cir.
2002) and by the United States Court of Appeals for the D.C. Circuit
(Sierra Club v. EPA, 294 F.3d 155, 162-163, D.C. Cir. 2002). See also
the final rulemakings for Pittsburgh-Beaver Valley, Pennsylvania, 66 FR
53096 (October 19, 2001) and St. Louis, Missouri-Illinois, 68 FR 25418
(May 12, 2003).
---------------------------------------------------------------------------

    \14\ This interpretation was adopted in the General Preamble,
see 57 FR 13498, and has been upheld as applied to the Clean Data
Policy, as well as to nonattainment SIP submissions. See NRDC v.
EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d
155 (D.C. Cir. 2002).
---------------------------------------------------------------------------

    CAA section 172(c)(2) provides that SIP provisions in nonattainment
areas must require ``reasonable further

progress.'' The term ``reasonable further progress'' is defined in
section 171(1) as ``such annual incremental reductions in emissions of
the relevant air pollutant as are required by this part or may
reasonably be required by the Administrator for the purpose of ensuring
attainment of the applicable NAAQS by the applicable date.'' Thus, by
definition, the ``reasonable further progress'' provision under subpart
1 requires only such reductions in emissions as are necessary to attain
the NAAQS. If an area has attained the NAAQS, the purpose of the RFP
requirement has been fulfilled, and since the area has already
attained, showing that the State will make RFP towards attainment
``[has] no meaning at that point.'' General Preamble, 57 FR 13498,
13564 (April 16, 1992).
    CAA section 172(c)(9) provides that SIPs in nonattainment areas
``shall provide for the implementation of specific measures to be
undertaken if the area fails to make reasonable further progress, or to
attain the [NAAQS] by the attainment date applicable under this part.
Such measures shall be included in the plan revision as contingency
measures to take effect in any such case without further action by the
State or [EPA].'' This contingency measure requirement is inextricably
tied to the reasonable further progress and attainment demonstration
requirements. Contingency measures are implemented if reasonable
further progress targets are not achieved, or if attainment is not
realized by the attainment date. Where an area has already achieved
attainment, it has no need to rely on contingency measures to come into
attainment or to make further progress to attainment. As EPA stated in
the General Preamble: ``The section 172(c)(9) requirements for
contingency measures are directed at ensuring RFP and attainment by the
applicable date.'' See 57 FR 13564. Thus these requirements no longer
apply when an area has attained the standard.
    It is important to note that should an area attain the 2006
PM2.5 standard based on three years of data, its obligation
to submit an attainment demonstration and related planning submissions
is suspended only for so long as the area continues to attain the
standard. If EPA subsequently determines, after notice-and-comment
rulemaking, that the area has violated the NAAQS, the requirements for
the State to submit a SIP to meet the previously suspended requirements
would be reinstated. It is likewise important to note that the area
remains designated nonattainment pending a further redesignation
action.

V. EPA's Proposed Action and Request for Public Comment

    EPA is proposing to determine that the Nogales nonattainment area
in Arizona has attained the 2006 24-hour PM2.5 standard
based on the most recent three years of complete, quality-assured, and
certified data for 2009-2011. Preliminary data available in AQS for
2012 show that the area continues to attain the standard.
    EPA further proposes that, if its proposed determination of
attainment is made final, the requirements for the Nogales
nonattainment area to submit an attainment demonstration and associated
RACM, a RFP plan, contingency measures, and any other planning SIPs
related to attainment of the 2006 PM2.5 NAAQS would be
suspended for so long as the area continues to attain the 2006
PM2.5 NAAQS. EPA's proposal is consistent and in keeping
with its long-held interpretation of CAA requirements, as well as with
EPA's regulations for similar determinations for ozone (see 40 CFR
51.918) and the 1997 fine particulate matter standards (see 40 CFR
51.1004(c)). As described below, any such determination would not be
equivalent to the redesignation of the area to attainment for the 2006
PM2.5 NAAQS.
    Any final action resulting from this proposal would not constitute
a redesignation to attainment under CAA section 107(d)(3) because we
have not yet approved a maintenance plan for the nonattainment area as
meeting the requirements of section 175A of the CAA or determined that
the area has met the other CAA requirements for redesignation. The
classification and designation status in 40 CFR part 81 would remain
nonattainment for the area until such time as EPA determines that
Arizona has met the CAA requirements for redesignating the Nogales
PM2.5 nonattainment area to attainment.
    If the Nogales nonattainment area continues to monitor attainment
of the 2006 PM2.5 NAAQS, EPA proposes that the requirements
for the area to submit an attainment demonstration and associated RACM,
a RFP plan, contingency measures, and any other planning requirements
related to attainment of the 2006 PM2.5 NAAQS will remain
suspended. If this proposed rulemaking is finalized and EPA
subsequently determines, after notice-and-comment rulemaking in the
Federal Register, that the area has violated the 2006 PM2.5
NAAQS, the basis for the suspension of these attainment planning
requirements for the area would no longer exist, and the area would
thereafter have to address such requirements.
    EPA is soliciting public comments on the issues discussed in this
document or on other relevant matters. We will accept comments from the
public on this proposal for the next 30 days. We will consider these
comments before taking final action.

VI. Statutory and Executive Order Reviews

    This action proposes to make a determination of attainment based on
air quality and to suspend certain federal requirements, and thus,
would not impose additional requirements beyond those imposed by state
law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action does not have Tribal implications
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP obligations discussed herein do not apply to Indian
Tribes and thus this

proposed action will not impose substantial direct costs on Tribal
governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Particulate matter, Nitrogen oxides, Sulfur oxides,
Reporting and recordkeeping requirements.

    Dated: October 15, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-26651 Filed 10-29-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 78, Number 79 (Wednesday, April 24, 2013)]
[Notices]
[Pages 24296-24298]
[FR Doc No: 2013-09693]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0023]

Qualification of Drivers; Exemption Applications; Vision

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

ACTION: Notice of final disposition.

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

SUMMARY: FMCSA announces its decision to exempt 3 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 April 24, 2013. The exemptions
expire on April 24, 2015.

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 Federal Docket
Management System (FDMS) published in the Federal Register on January
17, 2008 (73 FR 3316).

Background

    On March 5, 2013, FMCSA published a notice of receipt of exemption
applications from certain individuals, and requested comments from the
public (78 FR 14405). That notice listed 3 applicants' case histories.
The 3 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 3 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 3
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 a retinal detachment, a prosthetic eye, and optic
neuritis. In most cases, their eye conditions were not recently
developed. One of the applicants was 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 4 to 12 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 3 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 16
years. In the past 3 years, none of the drivers were involved in
crashes but one was convicted of a moving violation in a CMV.
    The qualifications, experience, and medical condition of each
applicant were stated and discussed in detail in the March 5, 2013
notice (78 FR 14405).

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 3 applicants, none of the drivers were involved in crashes but one
was convicted of a moving violation 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 3 applicants listed in the notice of March 5,
2013 (78 FR 14405).
    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 3 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 one comment in this proceeding. The comment is
considered and discussed below.
    The Pennsylvania Department of Transportation is in favor of
granting an exemption to Gale Smith after reviewing his driving
history.

Conclusion

    Based upon its evaluation of the 3 exemption applications, FMCSA
exempts David Doub (IN), Gregory S. Engleman (KY), and Gale Smith (PA)
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: April 12, 2013.
 Larry W. Minor,
 Associate Administration for Policy.
[FR Doc. 2013-09693 Filed 4-23-13; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 83, Number 198 (Friday, October 12, 2018)]
[Notices]
[Pages 51722-51724]
[FR Doc No: 2018-22203]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-84374; File No. SR-FINRA-2018-032]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Order Approving Proposed Rule Change to FINRA Rule
6710 To Modify the Dissemination Protocols for Agency Debt Securities

October 5, 2018.

I. Introduction

    On August 16, 2018, the Financial Industry Regulatory Authority,
Inc. (``FINRA'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to modify the dissemination protocols for Agency
Debt Securities. The proposed rule change was published for comment in
the Federal Register on August 23, 2018.\3\ The Commission received no
comment letters on the proposed rule

change. This order approves the proposed rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 83882 (August 17,
2018), 83 FR 42732 (``Notice'').
---------------------------------------------------------------------------

II. Description of the Proposal

    Under FINRA's rules, each member firm is required to report to the
Trade Reporting and Compliance Engine (``TRACE'') transactions in
TRACE-Eligible Securities,\4\ including securities that meet the
definition of ``Agency Debt Security.'' \5\ Currently, for disseminated
reports of transactions in Agency Debt Securities, FINRA displays
either the entire notional size (volume) of the transaction or a capped
amount, depending on whether the security is Investment Grade,\6\ Non-
Investment Grade,\7\ or unrated.\8\ For Agency Debt Securities that are
Investment Grade or unrated, FINRA disseminates the entire notional
size for transactions of $5 million or less in par value traded, but a
capped size--``$5MM+''--for transactions exceeding $5 million in par
value traded; for transactions in Agency Debt Securities that are Non-
Investment Grade, FINRA disseminates the entire notional size for
transactions of $1 million or less in par value traded but a capped
size-- ``1MM+''--for transactions exceeding $1 million in par value
traded.\9\
---------------------------------------------------------------------------

    \4\ See FINRA Rule 6710(a) (defining ``TRACE-Eligible
Security'').
    \5\ FINRA Rule 6710(l) generally defines ``Agency Debt
Security'' to mean a debt security (i) issued or guaranteed by an
Agency as defined in paragraph (k); (ii) issued or guaranteed by a
Government-Sponsored Enterprise as defined in paragraph (n); or
(iii) issued by a trust or other entity that was established or
sponsored by a Government-Sponsored Enterprise for the purpose of
issuing debt securities, where such enterprise provides collateral
to the trust or other entity or retains a material net economic
interest in the reference tranches associated with the securities
issued by the trust or other entity.
    \6\ FINRA Rule 6710(h) defines ``Investment Grade'' to mean ``a
TRACE-Eligible Security that, if rated by only one nationally
recognized statistical rating organization (``NRSRO''), is rated in
one of the four highest generic rating categories; or if rated by
more than one NRSRO, is rated in one of the four highest generic
rating categories by all or a majority of such NRSROs; provided that
if the NRSROs assign ratings that are evenly divided between (i) the
four highest generic ratings and (ii) ratings lower than the four
highest generic ratings, FINRA will classify the TRACE-Eligible
Security as Non-Investment Grade for purposes of TRACE. If a TRACE-
Eligible Security is unrated, for purposes of TRACE, FINRA may
classify the TRACE-Eligible Security as an Investment Grade
security. FINRA will classify an unrated Agency Debt Security as
defined in [Rule 6710(l)] as an Investment Grade security for
purposes of the dissemination of transaction volume.''
    \7\ FINRA Rule 6710(i) defines ``Non-Investment Grade'' to mean
``a TRACE-Eligible Security that, if rated by only one NRSRO, is
rated lower than one of the four highest generic rating categories;
or if rated by more than one NRSRO, is rated lower than one of the
four highest generic rating categories by all or a majority of such
NRSROs. Except as provided in [Rule 6710(h)], if a TRACE-Eligible
Security is unrated, FINRA may classify the TRACE-Eligible Security
as a Non-Investment Grade security.''
    \8\ See Notice, 83 FR at 42732.
    \9\ See Securities Exchange Act Release No. 59733 (April 8,
2009), 74 FR 17709, 17712 (April 16, 2009) (SR-FINRA-2009-010)
(Notice of Filing of Proposed Rule Change and Amendment No. 1
Thereto To Expand TRACE To Include Agency Debt Securities and
Primary Market Transactions).
---------------------------------------------------------------------------

    FINRA has proposed to apply the $5 million dissemination cap to
transactions in all Agency Debt Securities, regardless of whether the
security is Investment Grade, Non-Investment Grade, or unrated. FINRA
has stated that, when adopting the original dissemination caps for
Agency Debt Securities, it believed that unrated Agency Debt Securities
should default to the $5 million dissemination cap due to factors such
as that they trade more consistently with Investment Grade securities
that are subject to the $5 million dissemination cap.\10\ FINRA has
further stated that it is not aware of the existence of any Non-
Investment Grade Agency Debt Securities other than credit risk transfer
securities (``CRTs''), a type of Agency Debt Security issued by Fannie
Mae (``Fannie'') and Freddie Mac (``Freddie'').\11\ Based on FINRA's
experience with CRTs and in consultation with Fannie and Freddie, FINRA
believes that it is appropriate to disseminate Non-Investment Grade
CRTs with the $5 million dissemination cap. Because CRTs are the only
type of Agency Debt Security rated less than Investment Grade, FINRA is
proposing to simplify the dissemination structure by applying the $5
million cap to all Agency Debt Securities irrespective of rating.\12\
---------------------------------------------------------------------------

    \10\ See Notice, 83 FR at 42732.
    \11\ See id.
    \12\ See id. at 42733. In support of the proposal, FINRA
provided statistics about the trade count and notional volume traded
for Investment Grade, Non-Investment Grade, and unrated Agency Debt
Securities indicating that, for both metrics, transactions in Non-
Investment Grade Agency Debt Securities currently account for only a
small percentage of transactions in Agency Debt Securities. See id.
---------------------------------------------------------------------------

    FINRA has stated that it will announce the effective date of the
rule change in a Regulatory Notice to be published no later than 60
days following a Commission approval, and the effective date will be no
later than 120 days following publication of that Regulatory
Notice.\13\
---------------------------------------------------------------------------

    \13\ See id.
---------------------------------------------------------------------------

III. Discussion and Commission Findings

    After careful consideration, the Commission finds that the proposed
rule change is consistent with the requirements of the Act and the
rules and regulations thereunder applicable to a national securities
association.\14\ In particular, the Commission finds that the proposed
rule change is consistent with Section 15A(b)(6) of the Act,\15\ which
requires, among other things, that FINRA rules be designed to prevent
fraudulent and manipulative acts and practices, to promote just and
equitable principles of trade, and, in general, to protect investors
and the public interest. The Commission believes that the proposal is
reasonably designed to simplify the dissemination protocols for
transactions in Agency Debt Securities by instituting a uniform $5
million dissemination cap, regardless of whether the security is
Investment Grade, Non-Investment Grade, or unrated. The Commission
received no comments that objected to the proposed rule change and
notes that FINRA consulted with Fannie and Freddie before submitting
the proposal.
---------------------------------------------------------------------------

    \14\ In approving this proposal, the Commission has considered
the proposed rule's impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
    \15\ 15 U.S.C. 78o-3(b)(6).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(5) of the Act,\16\ the Commission
consulted with and considered the views of the Treasury Department in
determining to approve the proposed rule change. The Treasury
Department indicated its support for the proposal.\17\ Pursuant to
Section 19(b)(6) of the Act,\18\ the Commission has considered the
sufficiency and appropriateness of existing laws and rules applicable
to government securities brokers, government securities dealers, and
their associated persons in approving the proposal. As discussed above,
by applying the $5 million dissemination cap to all Agency Debt
Securities regardless of rating, the rule change will simplify the
dissemination protocols for transactions in Agency Debt Securities.
---------------------------------------------------------------------------

    \16\ 15 U.S.C. 78s(b)(5) (providing that the Commission ``shall
consult with and consider the views of the Secretary of the Treasury
prior to approving a proposed rule filed by a registered securities
association that primarily concerns conduct related to transactions
in government securities, except where the Commission determines
that an emergency exists requiring expeditious or summary action and
publishes its reasons therefor'').
    \17\ Telephone conversation with Treasury Department staff and
Brett Redfearn, Director, Division of Trading and Markets, et al.,
on October 2, 2018.
    \18\ 15 U.S.C. 78s(b)(6).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\19\ that the proposed rule change (SR-FINRA-2018-032) is approved.
---------------------------------------------------------------------------

    \19\ 15 U.S.C. 78s(b)(2).
    \20\ 17 CFR 200.30-3(a)(12).

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

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\20\
Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-22203 Filed 10-11-18; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 140 (Thursday, July 21, 2011)]
[Rules and Regulations]
[Pages 43577-43578]
[FR Doc No: 2011-18139]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2011-0121; Airspace Docket No. 11-ACE-2]

Amendment of Class E Airspace; Fulton, MO

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: This action amends Class E airspace for Fulton, MO.
Decommissioning of the Guthrie non-directional beacon (NDB) at Elton
Hensley Memorial Airport, Fulton, MO, has made this action necessary to
enhance the safety and management of Instrument Flight Rule (IFR)
operations at the airport.

DATES: Effective date: 0901 UTC, October 20, 2011. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and
publication of conforming amendments.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

History

    On April 19, 2011, the FAA published in the Federal Register a
notice of proposed rulemaking to amend Class E airspace for Fulton, MO,
reconfiguring controlled airspace at Elton Hensley Memorial Airport (76
FR 21825) Docket No. FAA-2011-0121. Interested parties were invited to
participate in this rulemaking effort by submitting written comments on
the proposal to the FAA. No comments were received. Class E airspace
designations are published in paragraph 6005 of FAA Order 7400.9U dated
August 18, 2010, and effective September 15, 2010, which is
incorporated by reference in 14 CFR part 71.1. The Class E airspace
designations listed in this document will be published subsequently in
the Order.

The Rule

    This action amends Title 14 Code of Federal Regulations (14 CFR)
part 71 by amending Class E airspace extending upward from 700 feet
above the surface for the Fulton, MO area. Decommissioning of the
Guthrie NDB and cancellation of the NDB approach at Elton Hensley
Memorial Airport has made reconfiguration of the airspace necessary for
the safety and management of IFR operations at the airport.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
Therefore, this regulation: (1) Is not a ``significant regulatory
action'' under Executive Order 12866; (2) is not a ``significant rule''
under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a regulatory evaluation
as the anticipated

impact is so minimal. Since this is a routine matter that will only
affect air traffic procedures and air navigation, it is certified that
this rule, when promulgated, will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it amends controlled airspace at Elton Hensley Memorial Airport,
Fulton, MO.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

Adoption of the Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR part 71.1 of the Federal
Aviation Administration Order 7400.9U, Airspace Designations and
Reporting Points, dated August 18, 2010, and effective September 15,
2010 is amended as follows:
* * * * *

Paragraph 6005 Class E airspace areas extending upward from 700
feet or more above the surface.

* * * * *

ACE MO E5 Fulton, MO [Amended]

Fulton, Elton Hensley Memorial Airport, MO
    (Lat. 38[deg]50'17'' N., long. 92[deg]00'09'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of Elton Hensley Memorial Airport.

    Issued in Fort Worth, Texas, on July 11, 2011.
Walter L. Tweedy,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2011-18139 Filed 7-20-11; 8:45 am]
BILLING CODE 4910-13-P