[Federal Register Volume 83, Number 197 (Thursday, October 11, 2018)]
[Rules and Regulations]
[Pages 51338-51340]
[FR Doc No: 2018-22160]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0937]
RIN 1625-AA00

Safety Zone; Transmission Line Survey, Tennessee River Mile
Marker 300 to 302, Decatur, AL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for
all navigable waters of the Tennessee River from mile marker 300 to
mile marker 302. This safety zone is necessary to protect persons,
property, and the marine environment from potential hazards associated
with the underwater survey of several transmission lines. Entry of
vessels or persons into this zone is prohibited unless authorized by
the Captain of the Port Sector Ohio Valley or a designated
representative.

DATES: This rule is effective from 8 a.m. on October 10, 2018 through 6
p.m. on October 17, 2018.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2018-0937 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Petty Officer Nicholas Jones, Marine Safety Detachment
Nashville, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port Sector Ohio Valley
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On September 25, 2018, Triton Diving Services notified Marine
Safety Detachment Nashville that their underwater transmission line
survey at mile marker 301 of the Tennessee River would be ready to
commence on October 10, 2018. Triton Diving Services estimates that the
work will take one week, and will conclude no later than October 17,
2018.
    The Coast Guard is issuing this temporary rule without prior notice
and opportunity to comment pursuant to authority under section 4(a) of
the Administrative Procedure Act (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is impracticable. We must
establish this safety zone by October 10, 2018, and lack sufficient
time to provide a reasonable comment period and then

consider those comments before issuing the rule. The NPRM process would
delay the establishment of the safety zone until after the underwater
transmission line survey and compromise public safety.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making it effective less than 30 days after publication in
the Federal Register. Delaying the effective date of this rule would be
contrary to public interest because immediate action is needed to
respond to potential safety hazards associated with the underwater
transmission line survey.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The Captain of the Port Sector Ohio Valley (COTP) has determined
that potential hazards associated with the underwater transmission line
survey will be a safety concern for anyone on a two-mile stretch of the
Tennessee River. This rule is necessary to protect persons, vessels,
and the marine environment during the transmission line operations.

IV. Discussion of the Rule

    This rule establishes a temporary safety zone from 8 a.m. on
October 10, 2018 through 6 p.m. on October 17, 2018, or until the
underwater transmission line survey work is finished, whichever occurs
earlier. The safety zone covers all navigable waters from mile marker
300 to mile marker 302 on the Tennessee River in Decatur, AL. The
safety zone will be enforced for two periods on each day of the
effective period, in the morning from 8 a.m. through noon, and in the
afternoon from 1 p.m. through 6 p.m. A safety vessel will coordinate
all vessel traffic during the enforcement periods. The duration of the
safety zone is intended to protect persons, vessels, and the marine
environment during the transmission line operations.
    No vessel or person is permitted to enter the safety zone without
obtaining permission from the COTP or a designated representative. A
designated representative is a commissioned, warrant, or petty officer
of the U.S. Coast Guard assigned to units under the operational control
of Sector Ohio Valley, U.S. Coast Guard. They may be contacted on VHF
Channel 13 or 16, or at 1-800-253-7465. All persons and vessels
permitted to enter this safety zone must transit at their slowest safe
speed and comply with all directions issued by the COTP or the
designated representative. The COTP or a designated representative will
inform the public of the enforcement times and dates for this safety
zone through Broadcast Notices to Mariners (BNMs), Local Notices to
Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as
appropriate.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, it has not been reviewed by the Office of
Management and Budget, and pursuant to OMB guidance it is exempt from
the requirements of Executive Order 13771.
    This regulatory action determination is based on the size,
location, and duration, of the temporary safety zone. This safety zone
prohibits transit on a two-mile stretch of the Tennessee River for
about 9 hours on each day of the 7 day period. Breaks in the work will
allow for vessels to pass through the safety zone between the morning
and afternoon enforcement periods, and a safety vessel will be on-scene
to help waterway users coordinate their transits. Moreover, the Coast
Guard will issue BNMs via VHF-FM marine channel 16 about the zone, and
the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
will not have a significant economic impact on a substantial number of
small entities.
    While some owners or operators of vessels intending to transit the
temporary safety zone may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
impact on any vessel owner or operator.
    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small
entities in understanding this rule. If the rule would affect your
small business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.

E. Unfunded Mandates Reform Act

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

F. Environment

    We have analyzed this rule under Department of Homeland Security
Directive 023-01 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969 (42 U.S.C. 4321-4370f), and have determined that this action is
one of a category of actions that do not individually or cumulatively
have a significant effect on the human environment. This rule prohibits
transit on a one-mile stretch of the Tennessee River for about 12 hours
on weekdays only during a one-month period. It is categorically
excluded from further review under paragraph L60(a) of Appendix A,
Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of
Environmental Consideration supporting this determination is available
in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the U. S. Coast Guard
amends 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.2.

0
2. Add new Sec.  165.T08-0937 to read as follows:

Sec.  165.T08-0937  Safety Zone; Transmission Line Survey, Tennessee
River, Miles 300 to 302, Decatur, AL.

    (a) Location. All navigable waters of the Tennessee River from mile
marker 300.0 to mile marker 302.0, Decatur, AL.
    (b) Effective period. This section is effective from 8 a.m. on
October 10, 2018 through 6 p.m. on October 17, 2018, or until the
underwater transmission line survey work is finished, whichever occurs
earlier.
    (c) Enforcement periods. This section will be enforced each day
during the effective period from 8 a.m. through noon, and from 1 p.m.
through 6 p.m. A safety vessel will coordinate all vessel traffic
during the enforcement periods.
    (d) Regulations. (1) In accordance with the general regulations in
Sec.  165.801 of this part, entry into this area is prohibited unless
authorized by the Captain of the Port Sector Ohio Valley (COTP) or a
designated representative. A designated representative is a
commissioned, warrant, or petty officer of the U.S. Coast Guard
assigned to units under the operational control of Sector Ohio Valley,
U.S. Coast Guard.
    (2) Persons or vessels requiring entry into or passage through the
area must request permission from the COTP or a designated
representative. U.S. Coast Guard Sector Ohio Valley may be contacted on
VHF Channel 13 or 16, or at 1-800-253-7465.
    (3) A safety vessel will coordinate all vessel traffic during the
enforcement of this safety zone. All persons and vessels permitted to
enter this safety zone must transit at their slowest safe speed and
comply with all directions issued by the COTP or the designated
representative.
    (e) Information broadcasts. The COTP or a designated representative
will inform the public of the enforcement times and dates for this
safety zone through Broadcast Notices to Mariners (BNMs), Local Notices
to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs),
as appropriate.

    Dated: October 5, 2018.
M.B. Zamperini,
Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
[FR Doc. 2018-22160 Filed 10-10-18; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 81, Number 208 (Thursday, October 27, 2016)]
[Notices]
[Pages 74847-74849]
[FR Doc No: 2016-25937]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79130; File No. SR-NYSE-2016-67]

Self-Regulatory Organizations; New York Stock Exchange LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change
Amending Rule 497

October 21, 2016.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that on October 13, 2016, New York Stock Exchange LLC (``NYSE''
or the ``Exchange'') filed with the Securities and Exchange Commission
(the ``Commission'') the proposed rule change as described in Items I
and II below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend Rule 497 regarding the requirements
for the listing of securities that are issued by the Exchange or any of
its affiliates. The proposed rule change is available on the Exchange's
Web site at www.nyse.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 those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts 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 Exchange proposes to amend Rule 497 (Additional Requirements
for Listed Securities Issued by Intercontinental Exchange, Inc. or its
Affiliates) regarding the requirements for the listing of securities
that are issued by the Exchange or any of its affiliates. Rule 497 sets
forth certain requirements that securities issued by the Exchange's
ultimate parent, Intercontinental Exchange, Inc. (``ICE''), or its
affiliates, must meet before they can be listed on the Exchange,
including certain pre-listing approvals and post-listing monitoring
requirements.
    Specifically, the Exchange is proposing to make the following
changes to Rule 497: (i) Expand the definition of Affiliate Security
under Rule 497(a)(2); (ii) require that the annual review required
under Rule 497(c)(2) be forwarded to the Exchange's Regulatory
Oversight Committee (``ROC''); and (iii) make non-substantive
typographical changes.
    Rule 497(a)(2) currently defines ``Affiliate Security'' as ``any
security issued by an ICE Affiliate, with the exception of Investment
Company Units as defined in Para. 703.16 of the Listed Company
Manual.'' \4\ The Exchange proposes to expand the definition of
Affiliate Security to include any Exchange-listed option on any
security issued by an ICE Affiliate. As a consequence, under Rule
497(b), prior to listing any new class of options on a security issued
by an ICE Affiliate, Exchange regulatory staff would be required to
make a finding that the option class satisfies the Exchange's rules for
listing, and the ROC would be required to approve such finding.
Likewise, throughout the continued listing of such option class on the
Exchange, it would be covered by the reporting requirements of Rule
497(c). In a non-substantive grammatical change to Rule 497(a)(2), the
Exchange also proposes to replace the ``a'' before ``ICE Affiliate''
with ``an.''
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    \4\ For purposes of Rule 497, an ``ICE Affiliate'' is ``ICE and
any entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with ICE, where `control' means that one entity possesses,
directly or indirectly, voting control of the other entity either
through ownership of capital stock or other equity securities or
through majority representation on the board of directors or other
management body of such entity.'' Rule 497(a)(1).
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    In the event that an ICE Affiliate lists an Affiliate Security,
Rule 497(c)(2) requires that, throughout the continued listing of the
Affiliate Security on the Exchange, an independent accounting firm will
review the listing standards for the Affiliate Security and a copy of
the report shall be forwarded promptly to the Securities and Exchange
Commission (``Commission''). The Exchange proposes to expand Rule
497(c)(2) to require that such report also be forwarded to the ROC.
    The Exchange proposes to make the following additional, non-
substantive changes to Rule 497(c):
     It proposes to move ``the Exchange shall'' from the end of
Rule 497(c) to the start of Rule 497(c)(1), as the text only applies to
Rule 497(c)(1), and not sub-paragraphs (2) or (3), and change ``shall''
to ``will.''
     It proposes to add ``and trading'' after ``Throughout the
continued listing'' in Rule 497(c), as Rule 497 (c)(1)

references the listing of Affiliate Securities, as well as their
trading.
     The Exchange proposes to delete an extraneous ``that''
from the final clause of Rule 497(c)(1)(b), so that it reads as
follows:
    Exchange regulatory staff's monitoring of the trading of the
Affiliate Security including summaries of all related surveillance
alerts, complaints, regulatory referrals, adjusted trades,
investigations, examinations, formal and informal disciplinary actions,
exception reports and trading data used to ensure the Affiliate
Security's compliance with the Exchange's listing and trading rules.
    The Exchange notes that the proposed amendments would be consistent
with recent changes to the Bats BZX Exchange, Inc. (``BZX'') Rule 14.3
regarding requirements for the listing of securities listed by BZX or
any of its affiliates.\5\
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    \5\ See Securities Exchange Act Release No. 77639 (April 18,
2016), 81 FR 23768 (April 22, 2016) (SR-BatsBZX-2016-08).
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2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with Section 6(b) of the Exchange Act \6\ in general, and Section
6(b)(5) \7\ in particular, in that it because 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 regulating, clearing, settling, processing
information with respect to, and facilitating transactions in
securities, to remove impediments to, and perfect the mechanism of a
free and open market and a national market system and, in general, to
protect investors and the public interest.
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    \6\ 15 U.S.C. 78f(b).
    \7\ 15 U.S.C. 78f(b)(5).
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    Specifically, the Exchange believes that the proposed rule change,
by requiring heightened reporting by the Exchange to the Commission and
the ROC with respect to oversight of the listing and trading on the
Exchange of Affiliate Securities, will continue to help protect against
concerns that the Exchange will not effectively enforce its rules with
respect to the listing and trading of these securities. By adding
Exchange-listed options on any security issued by an ICE Affiliate to
the definition of ``Affiliate Securities,'' the proposed changes would
expand the scope of Rule 497. The Exchange accordingly believes that
the proposed amendments to Rule 497 would continue to eliminate any
perception of a potential conflict of interest if an ICE Affiliate
seeks to list a security on the Exchange.
    Lastly, the Exchange believes that the proposed non-substantive
grammatical changes would promote just and equitable principles of
trade and remove impediments to a free and open market by providing
greater clarity in the Exchange's rules.

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Exchange Act. The proposed rule
change is not intended to address competitive issues but rather provide
market participants with additional specificity and transparency
regarding the Exchange's controls that are in place to address the
potential conflicts of interest that may arise in the listing of
Affiliate Securities on the Exchange.

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

    No written comments were solicited or received with respect to the
proposed rule change.

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, it has become effective pursuant to Section
19(b)(3)(A) of the Act \8\ and Rule 19b-4(f)(6) thereunder.\9\
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    \8\ 15 U.S.C. 78s(b)(3)(A).
    \9\ 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.
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    A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the
Act \10\ normally does not become operative for 30 days after the date
of its filing. However, Rule 19b-4(f)(6)(iii) \11\ permits the
Commission to 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 immediately upon filing. The
Commission believes that waiver of the operative delay is consistent
with the protection of investors and the public interest as it will
allow the Exchange to implement the proposed changes to Rule 497
without delay. Therefore, the Commission hereby waives the operative
delay and designates the proposal operative upon filing.\12\
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    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings to
determine whether the proposed rule change should be approved or
disapproved.

IV. Solicitation of Comments

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

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSE-2016-67 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-NYSE-2016-67. 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-NYSE-2016-67, and should be
submitted on or before November 17, 2016.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2016-25937 Filed 10-26-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 79, Number 151 (Wednesday, August 6, 2014)]
[Notices]
[Pages 45865-45866]
[FR Doc No: 2014-18646]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA-2014-0034]

Hours of Service of Drivers: Payne and Dolan, Inc.; Zenith Tech,
Inc.; and Northeast Asphalt, Inc.; Application for Exemption

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

ACTION: Notice of application for exemption; request for comments.

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SUMMARY: FMCSA announces that it has received an application from Payne
and Dolan, Inc.; Zenith Tech, Inc.; and Northeast Asphalt, Inc. for an
exemption from the 30-minute rest break provision of the Agency's
hours-of-service (HOS) regulations for commercial motor vehicle (CMV)
drivers. The requested exemption would apply to CMV drivers of these
three companies involved in the transport, placement and movement of
materials and equipment needed in the day-to-day operation of road,
bridge and parking lot construction and maintenance. These companies
believe that compliance with the 30-minute rest break rule is extremely
difficult due to several variables associated with the nature of their
operations and work scheduling (e.g., work zone time, delivery and
repair schedules). FMCSA requests public comment on these companies
application for exemption.

DATES: Comments must be received on or before September 5, 2014.

ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2014-0034 by any of the following
methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow
the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m.
E.T., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov, and follow the online
instructions for accessing the dockets, or go to the street address
listed above.
    Privacy Act: Anyone can search the electronic form of 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 a
Privacy Act notice regarding our public dockets in the January 17,
2008, issue of the Federal Register (73 FR 3316).
    Public Participation: The Federal eRulemaking Portal is available
24 hours each day, 365 days each year. You can get electronic
submission and retrieval help and guidelines under the ``help'' section
of the Federal eRulemaking Portal Web site. If you want us to notify
you that we received your comments, please include a self-addressed,
stamped envelope or postcard, or print the acknowledgement page that
appears after submitting comments online. Comments received after the
comment closing date will be included in the docket, and we will
consider late comments to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and

Carrier Operations Division; Office of Bus and Truck Standards and
Operations; Telephone:<PHONE_NUMBER>. Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain parts of the Federal Motor Carrier Safety
Regulations (FMCSRs). FMCSA must publish a notice of each exemption
request in the Federal Register (49 CFR 381.315(a)). The Agency must
provide the public an opportunity to inspect the information relevant
to the application, including any safety analyses that have been
conducted. The Agency must also provide an opportunity for public
comment on the request.
    The Agency reviews safety analyses and public comments submitted,
and determines whether granting the exemption would likely achieve a
level of safety equivalent to, or greater than, the level that would be
achieved by the current regulation (49 CFR 381.305). The decision of
the Agency must be published in the Federal Register (49 CFR
381.315(b)) with the reasons for denying or granting the application
and, if granted, the name of the person or class of persons receiving
the exemption, and the regulatory provision from which the exemption is
granted. The notice must also specify the effective period and explain
the terms and conditions of the exemption. The exemption may be renewed
(49 CFR 381.300(b)).

Request for Exemption

    On December 27, 2011 (76 FR 81133), FMCSA published a final rule
amending its hours-of-service (HOS) regulations for property-carrying
CMV drivers. The final rule adopted several changes to the HOS rules,
including a new provision requiring drivers to take a rest break during
the work day under certain circumstances. Drivers may now drive a CMV
only if 8 hours or less have passed since the end of the driver's last
off-duty or sleeper-berth period of at least 30 minutes. FMCSA did not
specify when drivers must take the 30-minute break, but the rule
requires that they wait no longer than 8 hours after the last off-duty
or sleeper-berth period of that length or longer to take the break.
Drivers who already take shorter breaks during the work day could
comply with the rule by taking one of the shorter breaks and extending
it to 30 minutes. This requirement took effect on July 1, 2013.
    Payne and Dolan, Inc. Zenith Tech, Inc., and Northeast Asphalt,
Inc. seek an exemption from the 30-minute rest break provision in 49
CFR 395.3(a)(3)(ii), which would apply to these companies and their CMV
drivers operating pavement repair and maintenance trucks. These
companies currently operate roughly 1,000 trucks, driven by
approximately 1,300 drivers in interstate commerce. According to these
companies, compliance with the new 30-minute break rule is problematic,
burdensome, and adversely impacts the effectiveness of the companies'
delivery of material and equipment. Approximately 95 percent of their
drivers spend less than 15 percent of their on-duty time actually
driving a CMV--roughly only 2 hours per day--with the other 85 percent
of the time spent on the job site performing their associated duties.
Drivers pick up their equipment at a designated storage site and
deliver it to the work site and unload on a daily basis, and the next
time they are required to operate the CMV is to load and return the
equipment to the storage yard at the end of the duty shift. Most
Federal, State and municipal jobs give the contractor a finite amount
of time to have the roads closed and perform the needed repairs--
usually from 9:00 p.m. to 5:00 a.m. According to these three companies,
with the requirement for these drivers to take the mandatory 30-minute
break, the work zone time is shortened by one half hour, thus extending
the length of time required to complete the scheduled repairs. They
agree that they need the flexibility to deliver equipment and materials
when the job and circumstances dictate the need, as these road repairs
can't always be scheduled for 9:00 a.m. to 5:00 p.m. They further add
that drivers in their industry segment are not subject to the fatigue-
inducing work conditions that other CMV operators are.
    Payne and Dolan, Inc. Zenith Tech, Inc. and Northeast Asphalt, Inc.
state that materials delivered to an active job site have a short life
span--the temperature of asphalt needs to be maintained--and should be
considered a perishable product. Once the ingredients of the material
have been mixed (or batched) there is a short ``window'' before the
temperature drops to a point that it is no longer usable. An incident
such as this costs thousands of dollars to rectify and could
potentially cause a violation of a delivery contract. Once a delivery
is started it must be completed, and all steps possible must be taken
to ensure that a load of material reaches its destination on time and
without disruption. An uninterrupted delivery is also necessary in case
a driver is made to wait a long period of time on a construction site
before unloading--a common ``real world'' scenario according to the
applicants for exemption. Adding a mandatory 30-minute break to this
process risks the integrity of the industry's delivered product.
    These companies believe the requested exemption would achieve the
same level of safety as the 30-minute rest break because their drivers
routinely receive numerous 10-, 15-, and 20-minute breaks throughout
the work day, and it is not uncommon for their drivers to take breaks
of up to 2 hours resulting from weather or unforeseen construction
delays. They further claim that these frequent breaks work to keep the
drivers awake and alert throughout the course of their duty period. One
additional 30-minute break--as is now required by the FMCSRs--would not
add an additional level of safety for their operation. The applicants
state that the construction industry ensures drivers are as safe as
possible and continue to use practices that emphasize safety. This
attention to safety is achieved through mandating rigorous training for
all truck drivers, daily, weekly, quarterly and annual safety checks,
and self-imposed random safety audits. A copy of their exemption
application is available for review in the docket for this notice.

Request for Comments

    In accordance with 49 U.S.C. 31136(e) and 31315(b)(4), FMCSA
requests public comment on this application for an exemption from one
provision of the driver's HOS regulations in 49 CFR part 395. The
Agency will consider all comments received by close of business on
September 5, 2014. Comments will be available for examination in the
docket at the location listed under the ADDRESSES section of this
notice. The Agency will consider to the extent practicable comments
received in the public docket after the closing date of the comment
period.

    Issued on: July 29, 2014.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2014-18646 Filed 8-5-14; 8:45 am]
BILLING CODE 4910-EX-P