[Federal Register: March 26, 2009 (Volume 74, Number 57)]
[Proposed Rules]
[Page 13161-13164]
[DOCID:fr26mr09-32]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2008-1158]
RIN 1625-AA09

Drawbridge Operation Regulation; Gulf Intracoastal Waterway
(Algiers Alternate Route), Belle Chasse, LA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the regulation governing
the operation of the SR 23 bridge across the Gulf Intracoastal Waterway
(Algiers Alternate Route), mile 3.8, at Belle Chasse, Plaquemines
Parish, Louisiana. Due to high vehicular traffic during the afternoon,
Plaquemines Parish has requested a change to the operation schedule to
allow the bridge to remain closed-to-navigation for an additional 90
minutes during weekday afternoons to facilitate the movement of
vehicular traffic.

DATES: Comments and related material must reach the Coast Guard on or
before May 26, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket
number USCG-2008-1158 to the Docket Management Facility at the U.S.
Department of Transportation. To avoid duplication, please use only one
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The
telephone number is<PHONE_NUMBER>.
    (4) Fax:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call David Frank, Bridge Administration Branch at<PHONE_NUMBER>.
If you have questions on viewing or submitting material to the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided. We have an agreement with the
Department of Transportation (DOT) to use the Docket Management
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-1158), indicate the specific section of this
document to which each comment applies, and give the reason for each
comment. We recommend that you include your name and a mailing address,
an e-mail address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
You may submit your comments and material by electronic means, mail,
fax, or delivery to the Docket Management Facility at the address under
ADDRESSES; but please submit your comments and material by only one
means. If you submit them by mail or delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to

know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period. We may change this
proposed rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov at
any time. Enter the docket number for this rulemaking (USCG-2008-1158)
in the Search box, and click ``Go>>.'' You may also visit either the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays or the Bridge Administration Office in Room 1313 of the Hale
Boggs Federal Building, 500 Poydras Street, New Orleans, LA 70130
between 7 a.m. and 3 p.m., Monday through Friday, except Federal
holidays.

Privacy Act

    Anyone can search the electronic form of all comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review the Department of
Transportation's Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477), or you may visit http://
DocketsInfo.dot.gov.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a
request for one to the Docket Management Facility at the address under
ADDRESSES explaining why one would be beneficial. If we determine that
one would aid this rulemaking, we will hold one at a time and place
announced by a later notice in the Federal Register.

Background and Purpose

    Plaquemines Parish has requested that a regulation regarding the
operation of the SR 23 bridge across the Gulf Intracoastal Waterway
(Algiers Alternate Route), mile 3.8, at Belle Chasse, Plaquemines
Parish, Louisiana to allow for the bridge to remain in the closed-to-
navigation for an additional 90 minutes in the afternoon to facilitate
the movement of vehicular traffic. Presently, the draw need not open
for the passage of vessels in the afternoon from 3:30 p.m. until 5:30
p.m. The request from Plaquemines Parish is to add an additional 90
minutes to the closure in the afternoon so that the draw need not open
for the passage of vessels from 3:30 p.m. until 7 p.m. The Louisiana
Department of Transportation and Development, the owner of the bridge,
has reviewed their bridge tender logs and have estimated that the
schedule change would affect an average of two vessels. It should be
noted that the vertical clearance of the bridge in the closed-to-
navigation position is 40 feet above mean high water in the closed-to-
navigation position so only vessels with vertical clearance
requirements of more than 40 feet will be affected by the proposed
change.
    This bridge currently opens on signal, except from 6 a.m. to 8:30
a.m. and from 3:30 p.m. to 5:30 p.m. Monday through Friday, excluding
Federal holidays, during which time the draw need not be opened for the
passage of vessels. Plaquemines Parish has requested that the bridge
remain closed an additional 90 minutes in the afternoon, until 7 p.m.
in the evening to minimize the delays to traffic caused by the opening
of the bridge. A recent traffic study indicates that between 1500 and
2000 vehicles per hour cross the bridge during weekday afternoons. When
the bridge opens for the passage of a vessel at 5:30 p.m., traffic may
back up for more than two miles. As SR 23 is the main highway into and
out of Plaquemines Parish, the traffic backup severely hampers the
ability of emergency responders to transit in the area. Plaquemines
Parish Office of Emergency Management has indicated that the increase
in times in the afternoon will allow for most of the traffic to clear
out of the area. They believe that the request will only cause a minor
increase in delays for vessels wishing to use the area. An alternate
route via the Harvey Canal is available for vessels with vertical
clearances of greater than 40 feet if they do not wish to be delayed.
    A Test Deviation, USCG-2008-0069, is being issued in conjunction
with this Notice of Proposed Rulemaking to test the proposed schedule
and to obtain data and public comments. The test period will be in
effect from April 10, 2009 until May 11, 2009. The Coast Guard will
review the logs of the drawbridge and evaluate public comments from
this Notice of Proposed Rulemaking and the above referenced Temporary
Deviation to determine if a permanent change to the special drawbridge
operating regulation is warranted.
    The Test Deviation shall allow the draw to open on signal, except
that the draw need not be opened for the passage of vessels from 6 a.m.
to 8:30 a.m. and from 3:30 p.m. to 7 p.m. Monday through Friday,
excluding Federal holidays.

Discussion of Proposed Rule

    Plaquemines Parish has requested a change in the operating
regulation which would allow the draw of the bridge to remain in the
closed-to-navigation position for an additional 90 minutes in the
afternoon to facilitate the movement of vehicular traffic in the area.
Presently, the bridge opens on signal, except from 6 a.m. to 8:30 a.m.
and from 3:30 p.m. to 5:30 p.m. Monday through Friday, excluding
Federal holidays, the draw need not be opened for the passage of
vessels.
    Plaquemines Parish has requested that an additional 90 minutes be
added on to the afternoon closure to allow the bridge to remain in the
closed-to-navigation position from 3:30 p.m. to 7 p.m., Monday through
Friday, except Federal holidays. The additional time would facilitate
the movement of vehicular traffic through Belle Chasse.

Regulatory Analyses

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

Regulatory Planning and Review

    This proposed rule is not a ``significant regulatory action'' under
section 3(f) of Executive Order 12866, Regulatory Planning and Review,
and does not require an assessment of potential costs and benefits
under section 6(a)(3) of that Order. The Office of Management and
Budget has not reviewed it under that Order.
    We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation is unnecessary.
    The public would need to notify the bridge owner of a required
opening 14 days in advance rather than 24 hours in advance.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000.

    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed
rule would not have a significant economic impact on a substantial
number of small entities. This proposed rule would affect the following
entities, some of which might be small entities: the owners or
operators of vessels with vertical clearances of greater that 40 feet
needing to transit the bridge between the hours of 3:30 p.m. and 5:30
p.m., Monday through Friday, except Federal holidays, would be delayed
an additional 90 minutes until 7 p.m. Vessels that can safely transit
under the bridge may do so at any time. Before the effective period, we
will issue maritime advisories widely available to users of the
waterway.
    If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.

Assistance for Small Entities

    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 proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 David Frank, Bridge
Administration Branch, at<PHONE_NUMBER>. 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.

Collection of Information

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

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

    This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.

Energy Effects

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

Technical Standards

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

Environment

    We have analyzed this proposed rule under Commandant Instruction
M16475.lD and Department of Homeland Security Management Directive
5100.1, which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have made a preliminary determination that this action is not likely to
have a significant effect on the human environment because it simply
promulgates the operating regulations or procedures for drawbridges. We
seek any comments or information that may lead to the discovery of a
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117 Bridges.

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

PART 117--DRAWBRIDGE OPERATION REGULATIONS

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

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

    Sec.  117.451(b) is revised to read as follows:

Sec.  117.451  Gulf Intracoastal Waterway.

* * * * *
    (b) The draw of the SR 23 bridge, Algiers Alternate Route, mile 3.8
at Belle Chasse, shall open on signal;

except that, from 6 a.m. to 8:30 a.m. and from 3:30 p.m. to 7 p.m.
Monday through Friday, except Federal holidays, the draw need not be
opened for the passage of vessels.
* * * * *

    Dated: March 9, 2009.
J.R. Whitehead,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. E9-6668 Filed 3-25-09; 8:45 am]

BILLING CODE 4910-15-P


[Federal Register Volume 81, Number 238 (Monday, December 12, 2016)]
[Notices]
[Pages 89453-89454]
[FR Doc No: 2016-29620]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2242-078]

Eugene Water and Electric Board; Notice of Settlement Agreement
and Soliciting Comments

    Take notice that the following settlement agreement has been filed
with the Commission and is available for public inspection.
    a. Type of Application: Settlement agreement (amending settlement
agreement filed October 23, 2008).
    b. Project No.: 2242-078.
    c. Date filed: November 30, 2016.
    d. Applicant: Eugene Water and Electric Board.
    e. Name of Project: Carmen-Smith Hydroelectric Project.
    f. Location: On the McKenzie River in Lane and Linn counties, near
the town of McKenzie Bridge, Oregon. The project occupies approximately
560 acres of the Willamette National Forest.
    g. Filed Pursuant to: Rule 602 of the Commission's Rules of
Practice and Procedure, 18 CFR 385.602.
    h. Applicant Contact: Frank Lawson, General Manager, Eugene Water
and Electric Board, 500 East 4th Avenue, P.O. Box 10148, Eugene, Oregon
97440-2148;<PHONE_NUMBER>.
    i. FERC Contact: Dianne Rodman;<PHONE_NUMBER> or
<EMAIL_ADDRESS>    j. Deadline for Filing Comments: January 2, 2017. Reply comments
due January 17, 2017.
    The Commission strongly encourages electronic filing. Please file
comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to
6,000 characters, without prior registration, using the eComment system
at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your
name and contact information at the end of your comments. For
assistance, please contact FERC Online Support at
<EMAIL_ADDRESS>(866) 208-3676 (toll free), or (202) 502-
8659 (TTY). In lieu of electronic filing, please send a paper copy to:
Secretary, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426. The first page of any filing should include
docket number P-2242-078.
    The Commission's Rules of Practice require all intervenors filing
documents with the Commission to serve a copy of that document on each
person on the official service list for the project. Further, if an
intervenor files comments

or documents with the Commission relating to the merits of an issue
that may affect the responsibilities of a particular resource agency,
they must also serve a copy of the document on that resource agency.
    k. Eugene Water and Electric Board (EWEB) filed the settlement
agreement on behalf of itself and the National Marine Fisheries
Service, U.S. Fish and Wildlife Service, Forest Service, Oregon
Department of Environmental Quality, Oregon Department of Fish and
Wildlife, Oregon Parks and Recreation Department, Confederated Tribes
of the Grand Ronde Community of Oregon, Confederated Tribes of Siletz
Indians of Oregon, Confederated Tribes of the Warm Springs Reservation
of Oregon, McKenzie Flyfishers, Rocky Mountain Elk Foundation, Inc.,
and Trout Unlimited. The purpose of the settlement agreement is to
resolve among the signatories all issues associated with issuance of a
new license for the project regarding water quality, instream flows,
fish passage and habitat, wildlife, recreation, aesthetics, and
cultural resources. EWEB requests that the Commission accept and
incorporate into any new license for the project the protection,
mitigation, and enhancement measures stated in the amended settlement
agreement.
    l. A copy of the settlement agreement is available for review at
the Commission in the Public Reference Room or may be viewed on the
Commission's Web site at http://www.ferc.gov using the ``eLibrary''
link. Enter the docket number excluding the last three digits in the
docket number field to access the document. For assistance, contact
FERC Online Support. A copy is also available for inspection and
reproduction at the address in item h above.
    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, contact FERC
Online Support.

    Dated: December 2, 2016.
Kimberly D. Bose,
 Secretary.
[FR Doc. 2016-29620 Filed 12-9-16; 8:45 am]
 BILLING CODE 6717-01-P


[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Notices]
[Pages 2307-2309]
[FR Doc No: 2019-01267]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2018-0237]

Hours of Service of Drivers: American Concrete Pavement
Association, Inc.; Application for Exemptions

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

ACTION: Notice of final disposition; grant of application for
exemptions.

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SUMMARY: FMCSA announces its decision to grant the American Concrete
Pavement Association, Inc. (ACPA) exemptions from two requirements of
the hours-of-service (HOS) regulations for drivers of certain
commercial motor vehicles (CMVs): The 30-minute rest break provision;
and the requirement that short-haul drivers utilizing the record of
duty status (RODS) exception return to their work-reporting location
within 12 hours of coming on duty. The first exemption will enable
drivers transporting ready-mixed concrete and related materials and
equipment in vehicles other than those outfitted with rotating mixer
drums, to use 30 minutes or more of on-duty ``waiting time'' to satisfy
the requirement for the 30-minute rest break, provided they do not
perform any other work during the break. The second exemption will
allow these drivers to use the short-haul exception but return to their
work-reporting location within 14 hours instead of the usual 12 hours.

DATES: This exemption is applicable February 6, 2019 and expires
February 6, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, FMCSA Driver and
Carrier Operations Division; Office of Carrier, Driver and Vehicle
Safety Standards; Telephone:<PHONE_NUMBER>. Email<EMAIL_ADDRESS>If you
have questions on viewing or submitting material to the docket, contact
Docket Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to www.regulations.gov and insert
the docket number, ``FMCSA-2018-0237'' in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document to review. If you do not have access to the internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays.

II. Legal Basis

    FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant
exemptions from certain 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 compliance with 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 (up to 5
years) and explain the terms and conditions of the exemption. The
exemption may be renewed (49 CFR 381.300(b)).

III. Request for Exemptions

    ACPA seeks two exemptions for drivers transporting ready-mixed
concrete and related materials and equipment from the hours-of-service
(HOS) 30-minute rest break provision in 49 CFR 395.3(a)(3)(ii) and the
restriction of the record of duty status (RODS) exception for short-
haul operations to drivers who return to their normal work-reporting
location within 12 hours [49 CFR 395.1(e)(1)(ii)(A)].
    ACPA requested the first exemption from the HOS rest break
provision to allow drivers transporting ready-mixed concrete and
related materials in vehicles other than those outfitted with rotating
mixer drums, to use 30 minutes or more of on-duty ``waiting time'' to
satisfy the requirement for the 30-minute rest break, provided they do
not perform any other work during the break. According to ACPA,
concrete mixtures are extremely perishable, as all steps in the process
of a typical mainline paving project are time-critical. Employees must
coordinate and direct a complex series of logistical steps, one of the
most important elements of which is the delivery of the concrete within
a time frame specified by the transportation agency or owner. The
concrete is essentially made to order, then delivered by end-dump
trucks so there is a steady and constant delivery of material that
keeps pace with the paving equipment. Any issue that delays the well-
orchestrated, just-in-time delivery of concrete can result in batches
being turned away by inspectors, the paving operation being shut down
temporarily, and ultimately, cause time and cost overruns. The
criticality of concrete delivery from plant to paving site is arguably
one of the most important factors in a paving process, according to
ACPA.
    ACPA requested the second exemption to allow the same drivers to
use the short-haul RODS exception, but with a 14-hour duty period
instead of 12 hours. ACPA advises that while some short-haul drivers
will be able to take advantage of the exception from the 30-minute
break, other drivers are often required to be on duty more than 12
hours in a day and therefore are not eligible to use the short-haul
exception.
    ACPA pointed out that FMCSA granted drivers of ready-mixed concrete
delivery vehicles an exemption from the minimum 30-minute rest break
provision (80 FR17819, April 2, 2015).\1\ Section 5206(b)(1)(A) of the
Fixing America's Surface Transportation Act made that exemption
permanent (Pub. L. 114-94, 129 Stat. 1312, 1537, Dec. 4, 2015).
Similarly, on January 26, 2018, FMCSA granted an exemption to the
National Asphalt Pavement Association (NAPA) for drivers transporting
asphalt and related materials and equipment from 1) the 30-minute rest
break requirement, and 2) the 12-hour daily on-duty limit on the short-
haul exception, which was expanded to 14 hours [83 FR 3864]. ACPA
states that the reasoning supporting the NAPA exemption is equally
applicable to drivers of ready-mixed concrete vehicles. The ACPA stated
that the same reasoning supporting the exemptions from the 30-minute
break time rule and allowing a 14-hour daily on-duty period for drivers
engaged in the transportation of asphalt and related materials and
equipment applies to drivers of ready-mixed concrete vehicles.
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    \1\ The hours-of-service regulations define ``ready mixed
concrete delivery vehicle'' to mean ``a vehicle designed to deliver
ready-mixed concrete on a daily basis and equipped with a mechanism
under which the vehicle's propulsion engine provides the power to
operate a mixer drum to agitate and mix the product en route to the
delivery site.'' 49 CFR 395.2.
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    ACPA stated that drivers would remain subject to all other HOS
regulations and would receive sufficient rest due to the nature of
their operations that limit driving to an average of 80-100 miles per
day during the paving season. ACPA believes that granting these
exemptions would achieve the same level of safety provided by
compliance with the two HOS rules. The requested exemptions are for 5
years. A copy of ACPA's application for exemptions is available for
review in the docket for this notice.

V. Public Comments

    On September 6, 2018, FMCSA published notice of this application
and requested public comment (83 FR 45300). The Agency received 29
comments. Nearly all the respondents supported the requested
exemptions, including the Associated General Contractors of America
(AGC), the American Road and Transportation Builders Association
(ARTBA), Koss Construction Company (Koss), trucking companies, and
individuals affiliated with the concrete paving industry.
    AGC said, ``In further recognition of the unique nature of
construction operations and its outstanding safety record, Congress in
the FAST Act provided the same two exemptions ACPA is seeking to
drivers of ready-mixed concrete delivery vehicles. Both are perishable
products that are not usable if they are not dropped and spread within
a brief delivery window. Because of this short delivery window, the
routes from the production facility to the delivery site for both
products are limited to less than 40 miles, and the time spent driving
a CMV is typically only a few hours per day. Thus, in both cases, the
drivers do not face the same fatigue factors as drivers of long-haul
trucks, and therefore do not pose the same risk of a fatigue-related
accident as long-haul drivers.''
    ARTBA commented: ``Transportation construction industry drivers are
not long-haul operators who consistently spend many consecutive hours
on the road in a given day. They are short-haul drivers who typically
travel less than 20 miles one way. Many of our drivers spend
substantial amounts of time off the road during the work day, loading
and unloading materials or equipment. Others may be responsible for
positioning a piece of mobile equipment at the beginning of the work
day, but may not be back behind the wheel until day's end, so that
their daily drive time is actually minimal.''
    Koss echoed that comment: ``Concrete being delivered to our
jobsites is time sensitive and the 30-minute rest period impacts the
ability of our drivers to deliver our highly perishable material to the
jobsite within the required time frame to meet each owner's stringent
quality requirements. This needless loss of material is frustrating
since production and delivery methods create significant rest periods
throughout the day for our drivers that exceed the 30-minute DOT rest
requirement. . . . Due to the limited construction season, we must
maximize every available hour of daylight. Limiting our drivers to 12
hours of on duty time creates additional cost by carrying extra
resources to deploy creative shifts to maximize up time of our fleet.''
    One anonymous respondent opposed the requested exemptions.
According to this individual, ``I ask that the 30-minute break remain a
requirement. Further, I ask that the department consider revising the
rules so that drivers engaged in physically demanding unloading within
a 100-air mile radius are limited to 12 hours on duty rather than 14 or
16.''

VI. FMCSA Decision

    FMCSA has evaluated ACPA's application and the public comments and
decided to grant the exemptions. The Agency believes that all drivers
transporting ready-mixed concrete and related materials and equipment
in vehicles other than those outfitted with rotating mixer drums, will
likely achieve a level of safety that is equivalent to or greater than,
the level of safety achieved without the exemptions [49 CFR
381.305(a)].
    The first exemption from the HOS 30-minute break provision will
allow drivers transporting ready-mixed concrete and related materials
to use 30 minutes or more of on-duty ``waiting time'' to satisfy the
requirement for the 30-minute rest break, provided they do not perform
any other work during the break. The second exemption will allow
drivers to use the short-haul RODS exception but with a 14-hour duty
period instead of the usual 12 hours.

VII. Terms and Conditions for the Exemptions

     Drivers must have a copy of this notice or equivalent
signed FMCSA exemption document in their possession while operating
under the terms of the exemptions. The exemption document must be
presented to law enforcement officials upon request.
     Drivers must return to the work reporting location and be
released from work within 14 consecutive hours.

Preemption

    In accordance with 49 U.S.C. 31315(d), during the period these
exemptions are in in effect, no State shall enforce any law or
regulation that conflicts with or is inconsistent with this exemption
with respect to a firm or person operating under the exemptions.

Notification to FMCSA

    Exempt motor carriers must notify FMCSA within 5 business days of
any accident (as defined in 49 CFR 390.5), involving any of its CMVs
operating under the terms of the exemptions. The notification must
include the following information:
    (a) Name of the exemption: ``ACPA''
    (b) Name of the operating motor carrier,
    (c) Date of the accident,
    (d) City or town, and State, in which the accident occurred, or
closest to the accident scene,
    (e) Driver's name and license number,
    (f) Vehicle number and State license number,
    (g) Number of individuals suffering physical injury,
    (h) Number of fatalities,
    (i) The police-reported cause of the accident,
    (j) Whether the driver was cited for violation of any traffic laws,
motor carrier safety regulations, and
    (k) The driver's total on-duty time period prior to the accident.
    Reports filed under this provision shall be emailed to
<EMAIL_ADDRESS>
Termination

    FMCSA does not believe the drivers covered by these exemptions will
experience any deterioration of their safety record.
    Interested parties or organizations possessing information that
would show that any or all of these motor carriers are not achieving
the requisite level of safety should immediately notify FMCSA. The
Agency will evaluate any information submitted and, if safety is being
compromised or if the continuation of the exemptions is inconsistent
with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA will immediately take
steps to revoke the exemptions of the company or companies and drivers
in question.

    Issued on: January 30, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-01267 Filed 2-5-19; 8:45 am]
 BILLING CODE 4910-EX-P


OMB 83I FORM SUPPORTING STATEMENT FOR OMB REVIEW OF ICR NO. 2025.01 INFORMATION COLLECTION REQUEST FOR THE NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS ( NESHAP) FOR THE FRICTION MATERIALS MANUFACTURING SOURCE CATEGORY U. S. ENVIRONMENTAL PROTECTION AGENCY EMISSION STANDARDS DIVISION RESEARCH TRIANGLE PARK, NORTH CAROLINA 27711 MAY 2001 2 PART A OF THE SUPPORTING STATEMENT 1.0 Identification of the Information Collection ( a) Title and Number of the Information Collection.

" Reporting and Recordkeeping Requirements for the Friction Materials Manufacturing NESHAP." This is a new ICR. The EPA tracking number is 2025.01.

( b) Short Characterization.

Potential respondents are owners or operators of friction materials manufacturing facilities. Friction materials manufacturing facilities manufacture friction material using a solvent based process. Friction material is subsequently used to manufacture friction products that include, but are not limited to, disc brake pucks, disc brake pads, brake linings, brake shoes,

brake segments, brake blocks, brake discs, clutch facings, and clutches. The NESHAP contains an emission limitation for solvent mixers at friction materials manufacturing facilities. Solvent mixers are the affected source.

Consistent with the General Provisions for National Emission Standards for Hazardous Air Pollutants ( NESHAP) for Source Categories ( 40 CFR Part 63, Subpart A), respondents do not include the owner or operator of any facility that is not a major source of HAP emissions or any facility that does not operate affected solvent mixers, even if the facility is a major source.

Respondents must submit a one time notification of applicability of the standard and a one time notification of compliance status. Facilities must develop and implement a startup,

shutdown, and malfunction plan and submit semiannual reports of any event where the plan was not followed. Semiannual reports for periods of operation during which the emission limitation is exceeded ( or reports certifying that no exceedances have occurred) also are required. General requirements applicable to all NESHAP require records of applicability determinations;

deviations; periods of startups, shutdowns, or malfunctions; monitoring records; and all other information needed to determine compliance with the applicable standard. Records and reports must be retained for a total of 5 years ( 2 years at the site; the remaining 3 years of records may be retained off site). The files may be maintained in electronic form such as microfilm, computer disks, or magnetic tape.

The friction materials manufacturing NESHAP requires respondents to reduce the total 3 organic HAP emissions from their solvent mixers by preventing emission of no more than 15 percent ( based on a 7 day block average) of the HAP solvent that is loaded into the solvent mixer.

Respondents will likely use a solvent recovery system to reduce the amount of HAP solvent that is emitted. To show compliance with the HAP solvent emission limitation, respondents are required to use a weight measurement system ( e. g., floor scale system for measuring weight of liquid contained in a small tank) to measure and record the weight of HAP solvent loaded into the solvent mixer and the weight of HAP solvent recovered for each mix batch. No performance testing is required. However, respondents would be required to conduct an initial compliance demonstration, which consists of measuring and recording the weight of HAP solvent loaded into each solvent mixer and the weight of HAP solvent recovered for each mix batch over the first 7 consecutive days after the compliance date. Respondents also must maintain records of specific information needed to determine that the standards are being achieved and maintained. These proposed requirements are described in Attachment 1.

2. Need For and Use of the Collection ( a) Need/ Authority for the Collection.

The U. S. Environmental Protection Agency ( EPA) is charged under Section 112 of the Clean Air Act, as amended, to establish NESHAP for new or existing major sources or area sources that reflect:

... the maximum degree of reduction in emissions of [ HAPs] that is achievable taking into consideration the cost of achieving the emission reduction, any nonair quality health and environmental reduction, and energy requirements. [ section 112( d)( 2)]

This level of control is commonly referred to as the maximum achievable control technology ( MACT). Certain records and reports are necessary for the Administrator to confirm the compliance status of major sources and identify new or reconstructed sources subject to the standards. Specific information needed by EPA for the friction materials manufacturing NESHAP includes documentation that HAP emissions from affected solvent mixers are reduced according to the emission limitation. Such documentation necessitates measuring and recording the weight of HAP solvent loaded into the solvent mixer and the weight of HAP solvent recovered for each mix batch. These recordkeeping and reporting requirements are specifically authorized by section 114 of the Act ( 42 U. S. C. 7414) and set out in the NESHAP General Provisions. 4 ( b) Practical Utility/ Users of the Data.

The information will be used by Agency enforcement personnel to: ( 1) identify major sources and new, modified, or reconstructed sources subject to the standards; ( 2) ensure that MACT is being properly applied; and ( 3) ensure that the required emission limitation is achieved on a continuous basis. Based on the reported information, EPA can decide which facilities,

records, or processes should be inspected. The records that facilities maintain will indicate to EPA whether the required emission limitation is achieved.

3. Nonduplication, Consultation, and Other Collection Criteria ( a) Nonduplication.

A search of existing standards and outgoing ICR's revealed no duplication of information gathering efforts. However, certain reports required by State or local agencies may duplicate information required by the standards. In such cases, a copy of the report submitted to the State or local agency may be provided to the Administrator in lieu of the report required by the standards. The EPA has issued guidance to State and local agencies encouraging them to consolidate duplicative requirements into a single element to be reported.

( b) Public Notice Required Prior to ICR Submission to OMB.

This section is not applicable because this is a rule related ICR.

( c) Consultations.

Participants in the development process for this proposed NESHAP included the Friction Material Standards Institute, Brake Manufacturers Council, Motor and Equipment Manufacturers Association, Automotive Parts Rebuilders Association, and representatives from numerous friction materials manufacturing companies. These participants were contacted for information and were invited to meetings. In addition, several States, including Colorado, Georgia, Indiana,

North Carolina, Tennessee, and Wisconsin, were contacted for information. Consultations with these organizations and others will continue following proposal. A 60 day public comment period will be provided after proposal, during which the public will be given the opportunity to comment on the proposed NESHAP. All comments received will be considered, and some may be reflected in the development of the final NESHAP. 5 ( d) Effects of Less Frequent Collection.

If the relevant information were collected less frequently, EPA could not be reasonably assured that a facility is in compliance with the standards. In addition, our authority to take administrative action would be significantly reduced. Section 113( d) of the CAA limits the assessment of administrative penalties to violations which occur no more than 12 months before initiation of the administrative proceeding. Since administrative proceedings are less costly and require use of fewer resources than judicial proceedings, both we and the regulated community benefit from preservation of our administrative powers. Also, the reporting frequency in the rule is consistent with the requirements of title V permit programs. Consequently, less frequent reports would not result in a reduced burden.

( e) General Guidelines.

The friction materials manufacturing NESHAP requires that facilities retain records for a period of 5 years, which exceeds the 3 year retention period specified in the general information collection guidelines in 5 CFR 1320.6( f) of the Office of Management and Budget ( OMB)

regulations implementing the Paperwork Reduction Act. However, the 5 year retention period is consistent with the retention requirement in the General Provisions in subpart A of 40 CFR part 63 and the retention requirement in the operating permit program under 40 CFR part 70. All facilities subject to this rule will be required to obtain operating permits either through the State approved permitting program or, if one does not exist, in accordance with the provisions of 40 CFR part 71. Thus, the 5 year record retention requirement of the rule adds no additional burden. At a minimum, respondents will be required to retain onsite the most recent 2 years of data. The remaining 3 years of data could be retained at a readily accessible onsite or offsite storage facility. None of the other guidelines in 5 CFR 1320.6 are being exceeded.

( f) Confidentiality.

All information submitted to the Agency for which a claim of confidentiality is made will be safeguarded according to the Agency policies set forth in Title 40, Chapter 1, Part 2, Subpart B  Confidentiality of Business Information ( see 40 CFR 2; 41 FR 36902, September 1, 1976;

amended by 43 FR 39999, September 28, 1978; 43 FR 42251, September 28, 1978; 44 FR 17674, March 23, 1979). 6 ( g) Sensitive Questions.

The information to be reported consists of emissions calculations and other information that are not of a sensitive nature. Therefore, this section is not applicable because this ICR does not involve matters of a sensitive nature.

4. The Respondents and the Information Requested ( a) Respondents/ SIC Codes.

Respondents are owners or operators of friction materials manufacturing facilities that are major sources of HAP emissions and use solvent mixers. Four facilities with existing solvent mixers are required to comply with the emission limitations in the proposed rule. Two of these facilities already have the solvent recovery systems necessary to meet the emission limitations. No new friction materials manufacturing facilities or solvent mixers are expected to be constructed during the 3 year ICR clearance period. The respondents are classified under the Standard Industrial Classification ( SIC) codes 3714, 3299, 3499, 3568, and 3743; and North American Industrial Classification System ( NAICS) codes 33634, 327999, and 333613. Only certain processes classified in the SIC or NAICS codes listed above will be regulated by the friction materials manufacturing NESHAP.

( b) Information Requested.

( i) Data items, Including Recordkeeping Requirements. Attachment 1 summarizes the reporting and recordkeeping requirements, including the required retention time for all records.

( ii) Respondent activities. The respondent activities required by the standards are identified in Table 1 and introduced in Section 6( a). To the extent practicable, the activities required by respondents were designed to make use of or to be consistent with existing reporting and recordkeeping practices.

5. The Information Collected Agency Activities, Collection Methodology, and Information Management ( a) Agency Activities.

A list of Agency activities is provided in Table 2 and introduced in Section 6( c).

( b) Collection Methodology and Management. 7 Information contained in the one time only reports will be entered into the Aerometric Information Retrieval System ( AIRS) Facility Subsystem ( AFS) that is maintained and operated by our Office of Air Quality Planning and Standards ( OAQPS). Information contained in the periodic reports submitted to us will be reviewed for accuracy and completeness. Data obtained during periodic visits by our personnel from records maintained by the respondents will be tabulated and published for internal use in compliance and enforcement programs.

( c) Small Entity Flexibility.

Information available to the EPA indicates that only four friction materials manufacturing facilities are subject to the NESHAP because they are major sources of HAP and operate solvent mixers. Only one of the four facilities subject to the NESHAP is a small business based on one of the definitions used by the Small Business Administration ( 500 or fewer company employees for SIC codes 3499 and 3568). The EPA does not expect that this small business facility will experience adverse impacts due to the proposed rule. This facility already operates the solvent recovery system necessary to control solvent mixer emissions. Furthermore, this facility already has the monitoring equipment required by the proposed rule. The only additional costs that this facility will incur as a result of the proposed rule are reporting and recordkeeping costs. The capital costs that this facility will experience as a result of the proposed rule are minimal ( e. g.,

cost of a file cabinet for storing records).

The monitoring, reporting, and recordkeeping costs resulting from the proposed rule have been minimized for all facilities because the proposed rule does not include emission testing requirements. The monitoring, reporting, and recordkeeping requirements included in the proposed rule are necessary for facilities and the EPA to insure that the facilities are in compliance with the emission limitations. It is not expected that any facilities will experience adverse cost impacts due to the proposed rule.

( d) Collection Schedule.

Collection of data will begin after the effective date of the final friction materials manufacturing NESHAP. The compliance date for existing sources is 2 years after the effective date. The compliance date for new or reconstructed sources is the effective date if the source startup date is before the effective date or upon startup if the startup date is on or after the 8 effective date. No new or reconstructed sources are anticipated during the 3 year ICR clearance period. The schedule for notifications and reports required by the rule is summarized below.

For facilities with existing solvent mixers, the initial notification stating that the facility is subject to the rule must be submitted no later than 120 days after the effective date of the rule.

Facilities with new or reconstructed affected sources for which startup occurs on or after the effective date must submit the initial notification no later than 120 days after the source becomes subject to the rule. Facilities must demonstrate initial compliance with the emission limitation for solvent mixers by conducting an initial compliance demonstration within 7 days after the compliance date. Facilities must submit an initial notification of compliance status no later than 30 days following the completion of the initial compliance demonstration. Records necessary to determine continuous compliance must be compiled on a daily basis, and compliance reports must be submitted to the Administrator on a semiannual basis.

6. Estimating the Burden and Cost of the Collection ( a) Estimating Respondent Burden.

The annual burden estimates for reporting and recordkeeping are presented in Table 1.

These numbers were derived from estimates based on EPA's experience with other standards.

( b) Estimating Respondent Costs.

The information collection activities for sources subject to the standards are presented in Table 1. Labor costs for reporting and recordkeeping activities were estimated based on the most recently available labor rate data from the U. S. Bureau of Labor Statistics ( BLS)

( http:// stats. bls. gov/ news. release). Labor costs are divided into the following three categories: ( 1)

technical, ( 2) management, and ( 3) clerical. The base labor rates, including fringe benefits,

reported by BLS for March 2000 are $ 28.59 per hour ($ 28.59/ hr) for technical personnel,

$ 43.46/ hr for managerial personnel, and $ 18.07/ hr for clerical personnel. The base labor rates were adjusted by an overhead and profit rate of 167 percent. The resulting average hourly labor rates are $ 48/ hr for technical personnel, $ 73/ hr for management personnel, and $ 30/ hr for clerical personnel. In addition to labor costs, capital/ startup costs include the costs of installing the necessary monitoring equipment and purchasing file cabinets for storing records. Operation and maintenance ( O& M) costs include the O& M costs for monitoring equipment and photocopy and 9 postage costs associated with reporting requirements. The capital/ startup costs were estimated and annualized as described in the footnotes to Table 1.

( c) Estimating Agency Burden and Cost.

Because the information collection requirements were developed as an incidental part of standards development, no costs can be attributed to the development of the information collection requirements. Because reporting and recordkeeping requirements on the part of the respondents are required under the General Provisions for the MACT standards, no operational costs will be incurred by the Federal Government. Publication and distribution of the information are part of the Compliance Data System, with the result that no Federal costs can be directly attributed to the ICR. Examination of records to be maintained by the respondents will occur incidentally as part of the periodic inspection of sources that is part of EPA's overall compliance and enforcement program, and, therefore, is not attributable to the ICR. The only costs that the Federal government will incur are user costs associated with the analysis of the reported information, as presented in Table 2. Labor rates for Federal employees are based on the January 2001, Office of Personnel Management labor rates for General Schedule employees ( http:// www3. opm. gov/ oca/ 01tables/ gshrly/ html/ 01gshr. htm). The base labor rates are $ 26.19/ hr for technical personnel ( GS 12, step 5), $ 43.29 for management personnel ( GS 15, step 5), and $ 14.76/ hr for clerical personnel ( GS 7, step 5). The base labor rates were multiplied by the standard government benefits multiplication factor of 1.6. The resulting average hourly labor costs are $ 42/ hr for technical personnel, $ 69/ hr for management personnel, and $ 24/ hr for clerical personnel.

( d) Estimating the Respondent Universe and Total Burden and Costs.

The EPA has identified a total of four solvent based friction materials manufacturing facilities as major sources of HAP emissions operating affected solvent mixers subject to the friction materials manufacturing NESHAP. No new friction materials manufacturing facilities are anticipated to be constructed during the 3 year ICR clearance period. Details on the number of respondents affected by each individual burden item are provided in the footnotes of Table 1.

( e) Bottom Line Burden Hours and Costs/ Master Tables.

( i) Respondent tally. The bottom line respondent burden hours and costs, presented in 10 Table 1, are calculated by adding person hours per year down each column for technical,

managerial, and clerical staff, and by adding down the cost column. The total annual number of responses is five. The estimated total annual hours are 577 at an annual labor cost of $ 26,657.

The estimated total capital/ startup costs that would be incurred over the 3 years following proposal are $ 15,912. The annualized capital/ startup costs are $ 2,235. The total annual O& M cost is estimated to be $ 261. The total annualized cost requested ( including the annualized capital/ startup and O& M costs) is $ 2,496.

( ii) The Agency tally. The bottom line Agency burden hours and costs, presented in Table 2, are calculated as in the respondent table, by adding person hours per year down each column for technical, managerial, and clerical staff, and by adding down the cost column. In this case, the total cost is the sum of the total salary cost and total travel expenses for facilities visited.

The total annual hours are 116. The total annual cost is $ 4,883.

( iii) Variations in the annual bottom line. This section does not apply since no significant variation is anticipated.

( f) Reasons for Change in Burden.

This section does not apply because this is a new collection.

( g) Burden Statement.

The average annual respondent burden for the four existing affected friction materials manufacturing facilities is estimated at 577 hours. This estimate includes time for preparing and submitting notices, gathering information, submitting reports, and maintaining records.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to ( 1) review instructions; ( 2) develop, acquire, install, and utilize technology and systems for the purposes of maintaining information, and disclosing and providing information; ( 3) adjust the existing ways to comply with any previously applicable instructions and requirements; ( 4) train personnel to be able to respond to a collection of information; ( 5) search data sources; ( 6) complete and review the collection of information; and ( 7) transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. 11 The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Send comments on the EPA's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, U. S. Environmental Protection Agency ( 2822T), 1200 Pennsylvania Avenue NW,

Washington, DC 20460, and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, marked " Attention: Desk Officer for EPA." Include the EPA ICR number and OMB control number in any correspondence.

PART B OF THE SUPPORTING STATEMENT This section is not applicable because statistical methods are not used in data collection associated with this regulation. 12 TABLE 1. ANNUAL RESPONDENT BURDEN AND COST OF REPORTING AND RECORDKEEPING REQUIREMENTS OF THE PROPOSED RULE Burden item ( A)

Personhours per occurrence ( B)

No. of occurrences per respondent per year ( C)

Personhours per respondent per year ( C = A x B) ( D) Respondents per year a ( E) Technical personhours per year ( E = C x D) ( F) Management person hours per year ( F = E x 0.05) ( G) Clerical personhours per year ( G = E x 0.1) ( H) Cost,$ b 1. Applications NA 2. Survey and Studies NA 3. Acquisition, Installation, and Utilization of Technology and Systems 54 1 54 1.3 72 3.6 7.2 $ 3,935 4. Reporting Requirements A. Read instructions 0.5 1 0.5 1.3 0.7 0.0 0.1 $ 36 B. Required activities Startup, shutdown, malfunction plan 32 1 32 1.3 43 2 4 $ 1,577 C. Create information See 4B D. Gather existing information See 4B E. Write report Notification of applicability 2 1 2 1.3 3 0.1 0.3 $ 146 Notification of constr./ reconstr. 2 1 2 0 0 0.0 0.0 $ 0 Notification of anticipated startup 2 1 2 0 0 0.0 0.0 $ 0 Notification of actual startup 2 1 2 0 0 0.0 0.0 $ 0 Notification of compliance status 4 1 4 1.3 5 0.3 0.5 $ 291 Semi annual compliance reports:

Deviations c 8 1 8 0.20 1.6 0.1 0.2 $ 87 No deviations d 8 2 16 1.1 18 0.9 2 $ 991 TABLE 1. ( continued)

Burden item ( A)

Personhours per occurrence ( B)

No. of occurrences per respondent per year ( C)

Personhours per respondent per year ( C = A x B) ( D) Respondents per year a ( E) Technical personhours per year ( E = C x D) ( F) Management person hours per year ( F = E x 0.05) ( G) Clerical personhours per year ( G = E x 0.1) ( H) Cost,$ b 13 Startup, shutdown, malfunction report e 8 2 16 0.13 2 0.1 0.2 $ 117 5. Recordkeeping Requirements A. Read instructions 4 1 4 1.3 5 0.3 0.5 $ 291 B. Plan activities See 5E C. Implement activities See 5E D. Develop record system See 5E E. Time to enter information Records of solvent weight measurements f 0.033 2600 86 1.3 114 6 11 $ 6,252 Records of block average solvent weight g 2 52 104 1.3 139 7 14 $ 7,578 Records of startup, shutdown,

malfunction g 1 52 52 1.3 69 3 7 $ 3,789 Copies of notifications/ reports h 0.25 3 0.75 1.3 1 0 0 $ 55 F. Time to train personnel 20 1 20 1.3 27 1.3 3 $ 1,457 G. Time to adjust existing ways to comply with previously applicable requirements NA H. Time to transmit or disclose information h 0.25 3 0.75 1.3 1.0 0.1 0.1 $ 55 I. Time for audits NA TABLE 1. ( continued)

Burden item ( A)

Personhours per occurrence ( B)

No. of occurrences per respondent per year ( C)

Personhours per respondent per year ( C = A x B) ( D) Respondents per year a ( E) Technical personhours per year ( E = C x D) ( F) Management person hours per year ( F = E x 0.05) ( G) Clerical personhours per year ( G = E x 0.1) ( H) Cost,$ b 14 TOTAL ANNUAL BURDEN AND COST ( SALARY) 502 25.1 50.2 $ 26,657 TOTAL ANNUAL NUMBER OF RESPONSES i 5 ANNUAL CAPITAL COSTS:

Monitoring equipment j $ 14,973 File cabinets k $ 940 Total annual capital $ 19,912 ANNUALIZED CAPITAL COSTS: l Monitoring equipment ( 10 year life, 7% interest > CRF = 0.1424) $ 2,132 File cabinets ( 15 year life, 7% interest > CRF = 0.1098) $ 103 Total annualized capital $ 2,235 TOTAL ANNUAL COSTS ( O & M) m $ 261 TOTAL ANNUALIZED COSTS ( Annualized capital + O& M costs) $ 2,496 a A total of 4 major sources with a total of 7 existing solvent mixers are expected to comply during the 3 year ICR clearance period, for an average of 4/ 3 =

1.3 plants per year and 7/ 4 = 1.75 solvent mixers per plant. No new facilities and no new solvent mixers are expected to be constructed during the ICR clearance period.

b Costs are based on the following hourly rates: technical at $ 48, management at $ 73, and clerical at $ 30. Management person hours and clerical personhours are assumed to be 5 percent and 10 percent of technical person hours, respectively.

c Assumes 15% of respondents report deviations once a year.

d Assumes 85% of respondents report no deviations semiannually.

e Assumes 10% of respondents will have a startup, shutdown, or malfunction occur in a year that is not managed according to the plan.

f Assumes solvent weights recorded once per hour ( 2 minutes [ 0.033 hr] per record) for 2,600 hr/ yr ( the industry average solvent mixer annual operating TABLE 1. ( continued)

15 hours).

g Assumes information is entered 1 time per week for 52 weeks/ yr.

h Assumes typical plant transmits one time notifications of applicability and compliance status; the startup, shutdown, and malfunction plan; and 6 semiannual reports of excess emissions ( or no excess emissions) over the 3 year period, for a total of 9 items or an average of 3 items per year.

i The total annual number of responses is calculated by summing the product of columns B and D for each of the reports listed in 4E.

j The capital costs for monitoring equipment is estimated at $ 2,139 per solvent mixer for a floor scale system. ( 7 mixers x $ 2,139 = $ 14,973).

k Assumes one standard four drawer file cabinet per facility at a cost of $ 235 per cabinet ( 4 cabinets x $ 235 = $ 940).

l Annualized costs are calculated by multiplying the capital recovery factor ( CRF) by the capital cost. CRF = ( i) x ( 1 + i)^ t/(( 1 + i)^ t  1) where i = interest rate (%) and t = equipment life ( years).

m O& M costs include the following: ( 1) O& M for monitoring equipment estimated as 20% of the annual cost for monitors, and ( 2) photocopy and postage costs estimated as $ 22/ report.

N/ A = Not Applicable. 16 TABLE 2. ANNUAL BURDEN AND COST TO THE FEDERAL GOVERNMENT OF THE PROPOSED RULE Activity ( A)

EPA personhours per occurrence ( B)

No. of occurrences per plant per year ( C)

EPA personhours per plant per year ( C = A x B) ( D) Plants per year a ( E) Technical person hours per year ( E = C x D) ( F) Management person hours per year ( F = E x 0.05) ( G) Clerical personhours per year ( G = E x 0.1) ( H) Cost,$ b Litigation c 2,080 1 2,080 0.013 28 1 3 $ 1,327 Excess Emissions Enforcement Activities d 48 1 48 0.067 3 0 0 $ 153 Report Review Notification of applicability 2 1 2 1.3 3 0 0 $ 128 Notification of constr./ reconstr. 2 1 2 0 0 0 0 $ 0 Notification of anticipated startup 2 1 2 0 0 0 0 $ 0 Notification of actual startup 2 1 2 0 0 0 0 $ 0 Notification of compliance status 40 1 40 1.3 53 3 5 $ 2,552 Semi annual compliance reports:

Deviations e 20 1 20 0.20 4 0 0 $ 191 No deviations f 2 2 4 1.1 5 0 0 $ 217 Startup, shutdown, malfunction report g 20 2 40 0.13 5 0 1 $ 255 Onsite inspection of plant records 8 1 8 0.13 1 0 0 $ 51 TOTAL BURDEN AND COST ( SALARY) 101 5 10 $ 4,823 Travel Expenses for Plants Visited h, i $ 60 TOTAL ANNUAL COST ( SALARY + EXPENSES) $ 4,883 a A total of 4 major sources with a total of 7 existing solvent mixers are expected to comply during the 3 year ICR clearance period, for an average of 4/ 3 =

1.3 plants per year and 7/ 4 = 1.75 solvent mixers per plant. No new facilities and no new solvent mixers are expected to be constructed during the ICR clearance period. TABLE 2. ( continued)

17 b Costs are based on the following hourly rates: technical at $ 42, management at $ 69, and clerical at $ 24. Management person hours and clerical personhours are assumed to be 5 percent and 10 percent of technical person hours, respectively.

c Assumes 1% of plants will be involved in litigation.

d Assumes 5% of the plants will be involved in excess emissions enforcement activities.

e Assumes 15% of respondents report deviations once a year.

f Assumes 85% of respondents report no deviations semiannually.

g Assumes 10% of respondents will have a startup, shutdown, or malfunction occur in a year that is not managed according to the plan.

h Assumes Agency personnel will inspect records at 10% of plants.

i Assumes Agency personnel ( 1 person) will spend 1 day per plant, at $ 50 per diem per day, and $ 400 transportation expense per round trip to inspect records at plant. 18 ATTACHMENT 1 SUMMARY OF REPORTING AND RECORDKEEPING REQUIREMENTS 19 SUMMARY OF REPORTING AND RECORDKEEPING REQUIREMENTS Requirements Regulation Reference Notifications Initial notifications ( including construction/ reconstruction) 63.5, 63.9( b), and 63.9535( a)( d)

Notification of compliance status 63.9( h) and 63.9535( e)

Records Record retention 63.10( b)( 1) and 63.9550 Documentation supporting initial notifications and notifications of compliance status 63.10( b)( 2)( xiv) and 63.9545( a)( 1)

Records related to startup, shutdown, and malfunction 63.6( e)( 3) and 63.9545( a)( 2)

Monitoring records showing solvent mixers meet the emission limitation 63.10( b)( 2)( vi), ( x), and ( xi); 63.9530; and 63.9545( b)

Reports Semiannual compliance report: ° Startup, shutdown, and malfunction reports ° No deviations/ no out of control monitoring system ° Deviations/ out of control monitoring system 63.9540 63.10( d)( 5) and 63.9540( b)( 4) and ( d) 63.9540( b)( 5)( 6) 63.9540( c)


[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Notices]
[Pages 96136-96140]
[FR Doc No: 2016-31479]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-79664; File No. SR-ISEGemini-2016-16]

Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing
of Proposed Rule Change, as Modified by Amendment Nos. 1 and 2, To
Permit Nasdaq Execution Services, LLC To Become an Affiliated Member of
the Exchange To Perform Certain Routing and Other Functions

December 22, 2016.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 9, 2016, ISE Gemini, LLC (``ISE Gemini'' or ``Exchange'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change. On December 20, 2016, the Exchange filed
Amendment No. 1 to the proposed rule change, which amended and replaced
the Form 19b-4, and Exhibit 1 thereto, in their entirety. On December
20, 2016, the Exchange filed Amendment No. 2 to the proposed rule
change.\3\ The proposed rule change, as modified by Amendment Nos. 1
and 2, is described in Items I, II, and III below, which Items have
been prepared by the Exchange. The Commission is publishing this notice
to solicit comments on the proposed rule change, as modified by
Amendment Nos. 1 and 2, from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ Amendment No. 2 amended the description of one of the
inbound routing conditions that would apply. Specifically, the
Exchange modified the third condition to specify that the report
that FINRA will provided to the Exchange's chief regulatory officer
on a quarterly basis will quantify all alerts, of which the Exchange
or FINRA (rather than solely FINRA) are aware, that identify Nasdaq
Execution Services, LLC as a participant that has potentially
violated Commission or Exchange rules.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to (1) permit the Exchange to receive inbound
orders in options routed through Nasdaq Execution Services, LLC
(``NES'') from certain affiliated exchanges, as described in detail
below, by establishing procedures designed to prevent potential
informational advantages resulting from the affiliation with NES; and
(2) grant the Exchange an exemption to permit NES, an affiliate of the
Exchange, to become a Member of the Exchange in order to perform
certain routing an [sic] other functions on behalf of the Exchange.

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

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

1. Purpose
    The purpose of the filing is to permit ISE Gemini to receive
inbound orders in options routed through Nasdaq Execution Services, LLC
(``NES'') from certain affiliated exchanges, as described herein and
establish procedures designed to prevent potential informational
advantages resulting from the affiliation between ISE Gemini and NES.
The Exchange requests approval to permit NES, an affiliate of the
Exchange, to become a Member of the Exchange in order to perform
inbound routing on behalf of the Exchange. The Exchange is also filing
to permit ISE Gemini to route outbound orders through NES either
directly or indirectly through a third

party routing broker-dealer \4\ to other market centers and perform
other functions regarding the cancellation of orders and the
maintenance of a NES error account.\5\
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    \4\ The ability to route orders to other exchanges using either
the Exchange's affiliated broker-dealer (NES) or a third party
unaffiliated broker-dealer, which the Exchange may choose to use, is
for efficiency and potential cost savings.
    \5\ The ability to route orders to other exchanges using either
the Exchange's affiliated broker-dealer (NES) or a third party
unaffiliated broker-dealer, which the Exchange may choose to use, is
for efficiency and potential cost savings. See ISE-2016-27 (not
published) which amends ISE Chapter 19, Rules 1901, 1903, 1904 and
1905. The ISE rule changes impact ISE Gemini because Chapter 19 is
incorporated by reference into the ISE Gemini Rulebook.
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Restriction on Affiliation
    NES is a broker-dealer owned and operated by Nasdaq, Inc. NES is
affiliated with International Securities Exchange, LLC (``ISE''), ISE
Gemini, ISE Mercury LLC,\6\ NASDAQ PHLX LLC (``Phlx''), The NASDAQ
Options Market LLC (``NOM'') and NASDAQ BX, Inc. (``BX''). For purposes
of this filing the term ``Affiliated Entities'' shall refer to ISE, ISE
Mercury, Phlx, NOM and BX (collectively ``Affiliated Entities'').
Currently, NES is a member of Phlx, NOM and BX (collectively ``Nasdaq
Exchanges'') and provides all options routing functions for Phlx, NOM
and BX.\7\
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    \6\ ISE, ISE Gemini and ISE Mercury are collectively referred to
as ``ISE Exchanges.''
    \7\ See Phlx Rule 1080(m) and Nasdaq and BX Rules at Chapter VI,
Section 11.
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    Today, Phlx Rule 985 (Affiliation and Ownership Restrictions), The
NASDAQ Stock Market LLC (``Nasdaq'') Rule 2160 (Restrictions on
Affiliation) \8\ and BX Rule 2140 (Restrictions on Affiliation)
currently prohibit the Nasdaq Exchanges or any entity with which it is
affiliated from, directly or indirectly, acquiring or maintaining an
ownership interest in, or engaging in a business venture with, a Nasdaq
Exchange member or an affiliate of a Nasdaq Exchange member in the
absence of an effective filing under 19(b) of the Act. Specifically, in
connection with prior filings, the Commission has expressed concern
that the affiliation of an exchange with one of its members raises the
potential for unfair competitive advantage and potential conflicts of
interest between an exchange's self-regulatory obligations and its
commercial interests.\9\ NES performs similar functions for the Nasdaq
Exchanges and is a member of those three markets respectively.\10\
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    \8\ NOM is a facility of Nasdaq.
    \9\ Securities Exchange Act Release Nos. 71416 (January 28,
2014), 79 FR 6244 (February 3, 2014) (SR-Phlx-2014-05); 71419
(January 28, 2014), 79 FR 6247 (February 3, 2014) (SR-NASDAQ-2014-
007); and 714121 (January 28, 2014), 79 FR 6264 (February 3, 2014)
(SR-BX-2014-003).
    \10\ See Securities Exchange Act Release Nos. 59721 (April 7,
2009), 74 FR 17245 (April 14, 2009) (SR-Phlx-2009-32); 59779 (April
16, 2009) 74 FR 18600 (April 23, 2009) (SR-Phlx-2009-32, Amendment
No. 1) notice of filing of proposed rule change relating to enhanced
electronic trading platform for options); 61667 (March 5, 2010), 75
FR 11964 (March 12, 2016)(SR-Phlx-2010-36)(notice of filing and
immediate effectiveness of proposed rule changes to establish
procedures to prevent information advantages resulting from the
affiliation between Phlx and NES); and 71416 (January 28, 2014), 79
FR 6244 (February 3, 2014) (SR-Phlx-2014-05)(notice of filing and
immediate effectiveness of proposed rule change to inbound routing
of options orders). Nasdaq Options Services was the affiliated
broker-dealer prior to a rule change to utilize NES, another
affiliated broker-dealer of Nasdaq. See also Securities Exchange Act
Release Nos. 63769 (January 25, 2011), 76 FR 5423 (January 31, 2011)
(SR-BX-2011-003); 63859 (February 7, 2011), 76 FR 8391 (February 14,
2011) (SR-BX-2011-007) (notice of filing of proposed rule change
relating to permanent approval of the BX and NES inbound routing
relationship); 71420 (January 28, 2014), 79 FR 6256 (February 3,
2014)(SR-BX-2014-004)(notice of filing and immediate effectiveness
of proposed rule change to inbound routing). See also Securities
Exchange Act Release Nos. 65554 (October 13, 2011), 76 FR 65311
(October 20, 2011)(SR-NASDAQ-2011-142); 71418 (January 28, 2014), 79
FR 6262 (February 3, 2014)(SR-NASDAQ-2014-008)(notice of filing and
immediate effectiveness of proposed rule change to inbound routing).
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    Similarly, NES would be prohibited from becoming an ISE Gemini
member pursuant to ISE Gemini Rule 309, titled ``Limitation on
Affiliation between the Exchange and Members,'' without Commission
approval. Specifically, a Member may not become an affiliate of the
Exchange, or any facility of the Exchange, or any entity with which the
Exchange or any facility of the Exchange is affiliated such as the
Affiliated Entities. This rule change requests permission from the
Commission to allow NES, an affiliate of ISE Gemini to become a Member
of ISE Gemini for the purpose of performing certain functions,
including, but not limited to receiving inbound orders from one of the
Affiliated Entities.
    In order for NES to be a Member of ISE Gemini, the Exchange
proposes to permit the acceptance of inbound orders that NES routes in
its capacity as a facility of the Affiliated Exchanges \11\ subject to
certain limitations and conditions as follows:
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    \11\ The Exchange notes that ISE and ISE Mercury are separately
filing rule changes to permit NES to be a Member of ISE and ISE
Mercury for the purpose of performing certain routing and other
functions, including, but not limited to receiving inbound orders
from other entities that are affiliated with NES such as the
Affiliated Entities. See SR-ISE-2016-27 and SR-ISEMercury-2016-22
(both not published).
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     First, ISE Gemini shall maintain a Regulatory Services
Agreement (``RSA'') with FINRA, as well as an agreement pursuant to
Rule 17d-2 under the Act (``17d-2 Agreement'').\12\ Pursuant to the RSA
and the 17d-2 Agreement, FINRA will be allocated regulatory
responsibilities to review NES's compliance with certain Exchange
rules.\13\ Pursuant to the RSA, however, ISE Gemini retains ultimate
responsibility for enforcing its rules with respect to NES.
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    \12\ 17 CFR 240.17d-2. FINRA will review NES' compliance for
certain common rules. The RSA with FINRA specifies the types of
business activities that NES may undertake and it also indicates the
obligations to which NES is subject under the RSA. Among other
things, NES must maintain a certain amount of net capital pursuant
to SEC Rule 15c3-1(a)(1)(ii) and operate pursuant to SEC Rule 15c3-
3(k)(2)(ii). NES is permitted to route orders in options to the
appropriate market center for execution in accordance with member
order and requirements.
    \13\ NES is also subject to independent oversight by FINRA, its
designated examining authority, for compliance with financial
responsibility requirements.
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     Second, FINRA will monitor NES for compliance with the
Exchange's trading rules, and will collect and maintain certain related
information.\14\
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    \14\ Pursuant to the RSA, both FINRA and ISE Gemini shall
collect and maintain all alerts, complaints, investigations and
enforcement actions in which NES (in its capacity as a facility of
the Affiliated Entities) is identified as a participant that has
potentially violated applicable Commission or Exchange rules. The
Exchange and FINRA shall retain these records in an easily
accessible manner in order to facilitate any potential review
conducted by the Commission's Office of Compliance Inspections and
Examinations.
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     Third, FINRA will provide a report to the Exchange's chief
regulatory officer (``CRO''), on a quarterly basis, that: (i)
Quantifies all alerts (of which the Exchange or FINRA is aware) that
identify NES as a participant that has potentially violated Commission
or Exchange rules, and (ii) lists all investigations that identify NES
as a participant that has potentially violated Commission or Exchange
rules.
     Fourth, ISE Gemini has in place Rule 309. The Exchange
proposes to adopt a new paragraph (b) to Rule 309 to state that Nasdaq,
Inc., as the holding company owning ISE Gemini and NES, to [sic]
establish and maintain procedures and internal controls reasonably
designed to ensure that NES does not develop or implement changes to
its system, based on non-public information obtained regarding planned
changes to ISE Gemini's system, obtained as a result of its affiliation
with the Exchange, until such information is available generally to
similarly situated Exchange Members, in connection with the provision
of inbound order routing to the Exchange.\15\
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    \15\ Similarly, Phlx Rule 985 also prohibits a Phlx member from
being or becoming an affiliate of Phlx, or an affiliate of an entity
affiliated with Phlx, in the absence of an effective filing under
Section 19(b). See Phlx Rule 985(b)(1)(B). Phlx filed a rule
proposal and received approval based on meeting the four conditions
specified above to protect the independence of the Exchange's
regulatory responsibility with respect to NES, and has demonstrated
that NES cannot use any information advantage it may have because of
its affiliation with the Exchange.

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    The Exchange also proposes to add the letter ``(a)'' in front of
the existing paragraph in Rule 309.
Inbound Routing
    ISE Gemini Rule 309 is being amended to add rule language similar
to Phlx Rule 985(c)(2). This new rule text provides that Nasdaq, Inc.
which owns NES and ISE Gemini, shall establish and maintain procedures
and internal controls reasonably designed to ensure that NES does not
develop or implement changes to its system on the basis of non-public
information regarding planned changes to the Exchange's systems,
obtained as a result of its affiliation with the Exchange, until such
information is available generally to Exchange members in connection
with the provision of inbound routing to the Exchange.
    By meeting the conditions described above under Restrictions on
Affiliation, ISE Gemini will have set up mechanisms that protect the
independence of ISE Gemini's regulatory responsibilities, with respect
to NES, as well as demonstrate that NES cannot use any information
advantage it may have because of its affiliation with ISE Gemini.
    The Exchange has approval from Financial Regulatory Authority
(``FINRA'') \16\ and The Options Clearing Corporation (``OCC'') \17\
for NES to perform these functions.
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    \16\ The Membership Agreement as between NES and FINRA, dated
January 15, 2014, provides that NES may ``[e]ngage in the following
types of business: Route orders in equities and options to the
appropriate market center for execution in accordance with member
order and requirements.''
    \17\ On December 5, 2013 OCC provided NES membership approval.
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    The Exchange notes that the Nasdaq Exchanges are separately filing
rule changes to permit NES to route orders inbound from ISE Gemini to
the Nasdaq Exchanges.\18\
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    \18\ See SR-NASDAQ-2016-169, SR-Phlx-2016-120 and SR-BX-2016-068
(not published).
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Outbound Routing
    ISE has rules in place in Chapter 19 related to routing orders,
which rules impact routing on ISE Gemini because those rules are
incorporated by reference. Today, ISE Gemini utilizes Linkage Handlers
\19\ to route orders. These Linkage Handlers are unaffiliated with ISE
Gemini. The Exchange proposes to have NES route, either directly to
other options exchanges or indirectly through third-party routing
brokers on behalf of ISE Gemini.\20\ With the proposal, regardless of
whether a third-party routing broker is utilized, all options routing
will go through NES, however the Exchange could determine to direct NES
to route orders to certain exchanges through a routing broker rather
than routing an order directly. In those cases, orders are submitted to
the third-party routing broker through NES, and the third-party routing
broker routes the orders to the routing destination in its name.\21\
Specifically, within that proposal ISE proposes to amend Rule 1903 to
adopt new language similar to Phlx Rule 1080(m).\22\
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    \19\ A Linkage Handler is a broker that is unaffiliated with the
Exchange with which the Exchange has contracted to provide Routing
Services, as that term is defined in Rule 1903, by routing ISO(s) to
other exchange(s) as agent on behalf of Public Customer and Non-
Customer Orders according to the requirements of Rule 1901
(prohibition on trade-throughs) and Rule 1902 (prohibition on locked
and crossed markets). See Supplementary Material .03 to ISE Rule
1901.
    \20\ See SR-ISE-2016-27 (not published). This proposed rule
change proposes to replace Linkage Handlers with NES for the purpose
of outbound routing and to establish rules for the cancellation or
[sic] orders and maintenance of an error account.
    \21\ Id.
    \22\ Id.
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    ISE also proposed to amend Rule 1904 to replace the rule text with
rule text similar to Phlx Rule 1080(m)(v) to provide general authority
for ISE or NES to cancel orders in order to maintain fair and orderly
markets when technical system issues are occurring, and set forth the
manner in which error positions may be handled by the ISE or NES.\23\
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    \23\ Id.
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    Rule 1901 is being amended to remove references to Linkage Handlers
along with other references in Rules 1903.\24\ Finally Rule 1905
concerning error accounts is being deleted within that proposal.\25\
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    \24\ Id.
    \25\ Id.
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    The Exchange is proposing that NES be permitted to perform the same
functions pursuant to the same conditions with respect to the outbound
routing of orders, cancellation or orders, and the handling of error
positions as set forth in the ISE proposal.
    The Exchange also proposes to amend Rule 705 to remove the rule
text in Rule 705(d)(4) which provided an exception to the limits on
compensation for Linkage Handlers. NES is replacing the Linkage
Handlers for purposes of routing options orders from the ISE Exchanges.
Today, Phlx does not have a similar provision and ISE is removing it
from this rule.
Implementation
    The Exchange notes that with respect to the Rules in Chapter 19,
Rules 1901, 1903, 1904 and 1905, these rules impact not only the ISE
market but also ISE Gemini because Chapter 19 is incorporated by
reference into the ISE Gemini Rulebook. ISE Gemini will be implemented
in Q1 2017 on a symbol by symbol basis. The Exchange will add notations
in the ISE Gemini Rulebook to cross reference the amended rule text and
make clear the implementation date.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\26\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\27\ in particular, in that it is designed 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, and, in general to protect investors and the public
interest, because the proposed rule change will allow the Exchange to
receive inbound orders from each Affiliated Entity through NES, acting
in its capacity as a facility of the respective Affiliated Entity, in a
manner consistent with prior approvals and established protections. The
Exchange believes that these conditions establish mechanisms that
protect the independence of the Exchange's regulatory responsibility
with respect to NES, as well as ensure that NES cannot use any
information it may have because of its affiliation with the Exchange to
its advantage.
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    \26\ 15 U.S.C. 78f(b).
    \27\ 15 U.S.C. 78f(b)(5).
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    Further, the Exchange notes that its proposal is designed 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 because ISE Gemini will have set up mechanisms that
protect the independence of ISE Gemini's regulatory responsibilities,
with respect to NES, as well as demonstrate that NES cannot use any
information advantage it may have because of its affiliation with ISE
Gemini. The Exchange will not be granting any preferential access to
information from the Exchange's Order Book to NES. As an affiliated
routing broker, NES would not be treated differently than any other
unaffiliated routing broker.

    The proposal should remove impediments to and perfect the mechanism
of a free and open market and a national market system by providing
customer order protection and by facilitating trading at away exchanges
so customer orders trade at the best market price. The proposal should
also protect investors and the public interest by fostering compliance
with the Options Order Protection and Locked/Crossed Market Plan. In
addition, the Exchange believes that the proposal is not designed to
permit unfair discrimination between customers, issuers, brokers, or
dealers, because of the specific protections pertaining to the routing
broker, in light of the potential conflict of interest where the member
routing broker could have access to information regarding other
members' orders or the routing of those orders. These protections
include the Exchange's control over all routing logic as well as the
confidentiality of routing information.\28\
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    \28\ See proposed Rule 1903(e).
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    The Exchange believes that its proposal related to the cancellation
of orders and error account is consistent with the Act because NES's or
the Exchange's ability to cancel orders during a technical or systems
issue and to maintain an error account facilitates the smooth and
efficient operations of the market.\29\ Specifically, the Exchange
believes that allowing NES or the Exchange to cancel orders during a
technical or systems issue would allow the Exchange to maintain fair
and orderly markets.\30\ Moreover, the Exchange believes that allowing
NES to assume error positions in an error account and to liquidate
those positions, subject to the conditions set forth in the proposed
amendments to Rule 1904 would be the least disruptive means to correct
these errors, except in cases where NES can assign all such error
positions to all affected members of the Exchange.\31\ Overall, the
proposed amendments are designed to ensure full trade certainty for
market participants and to avoid disrupting the clearance and
settlement process.\32\ The proposed amendments are also designed to
provide a consistent methodology for handling error positions in a
manner that does not discriminate among members.\33\ The proposed
amendments are also consistent with Section 6 of the Act insofar as
they would require NES to establish controls to restrict the flow of
any confidential information between the third-party broker and NES/the
Exchange associated with the liquidation of error positions.\34\
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    \29\ See SR-ISE-2016-27 (not published).
    \30\ Id.
    \31\ Id.
    \32\ Id.
    \33\ Id.
    \34\ Id.
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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 not necessary or appropriate in
furtherance of the purposes of the Act. Receiving orders through NES
does not raise any issues of intra-market competition because it
involves inbound routing from an affiliated exchange. This proposal
provides that Nasdaq, which owns NES and the Exchange, shall establish
and maintain procedures and internal controls reasonably designed to
ensure that NES does not develop or implement changes to its system on
the basis of non-public information regarding planned changes to the
Exchange's systems, obtained as a result of its affiliation with the
Exchange, until such information is available generally to similarly
situated Exchange members and member organizations in connection with
the provision of inbound routing to the Exchange. Utilizing NES as the
routing broker does not create any undue burden on inter-market
competition because NES cannot use any information advantage it may
have because of its affiliation with ISE Gemini. The Exchange will not
be granting any preferential access to information from the Exchange's
Order Book to NES. As an affiliated routing broker, NES would not be
treated differently than any other unaffiliated routing broker.
    The proposal does not result in a burden on competition among
exchanges, because there are many competing options exchanges that
provide routing services, including through an affiliate. Further, the
proposal does not raise issues of intra-market competition, because the
Exchange's decision to route through a particular routing broker would
impact all participants equally.
    With respect to the proposal to establish error accounts, the
Exchange's proposal does not result in a burden on competition among
exchanges because NES' or the Exchange's ability to cancel orders
during a technical or systems issue and to maintain an error account
facilitates the smooth and efficient operations of the market for all
impacted members. The proposals regarding assumption of error positions
and [sic] to liquidation of those positions ensures certainty for all
impacted market participants. The proposal does not discriminate among
Members.\35\
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    \35\ See SR-ISE-2016-27 (not published).
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C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

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

    Within 45 days of the date of publication of this notice in the
Federal Register or within such longer period (i) as the Commission may
designate up to 90 days of such date if it finds such longer period to
be appropriate and publishes its reasons for so finding or (ii) as to
which the Exchange consents, the Commission shall: (a) By order approve
or disapprove such proposed rule change, or (b) institute proceedings
to determine whether the proposed rule change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change, as modified by Amendment Nos. 1 and 2, 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-ISEGemini-2016-16 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-ISEGemini-2016-16. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the

proposed rule change between the Commission and any person, other than
those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549 on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of such filing also will be available
for inspection and copying at the principal 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-ISEGemini-2016-16, and
should be submitted on or before January 19, 2017.
For the Commission, by the Division of Trading and Markets, pursuant to
delegated authority.\36\
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    \36\ 17 CFR 200.30-3(a)(12).

Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2016-31479 Filed 12-28-16; 8:45 am]
BILLING CODE 8011-01-P