[Federal Register Volume 78, Number 86 (Friday, May 3, 2013)]
[Notices]
[Pages 26104-26105]
[FR Doc No: 2013-10525]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0069]

Hours of Service of Drivers: Application for Exemption;
Timberdoodle Company

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

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

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SUMMARY: FMCSA announces that Timberdoodle Company (Timberdoodle)

has applied for an exemption from a provision of the ``Hours of Service
[HOS] of Drivers'' regulations (49 CFR part 395). Timberdoodle seeks
exemption from section 395.3(b)(1) which prohibits drivers of
commercial motor vehicles (CMVs) from driving after accumulating 60
hours on duty in a period of 7 days. Timberdoodle asks that its drivers
be exempted from including on-duty time that is not driving time in
this calculation. Timberdoodle states that CMV operations under its
proposed rules are likely to achieve a level of safety equivalent to or
greater than the level of safety as would be obtained in the absence of
the exemption.

DATES: Comments must be received on or before June 3, 2013.

ADDRESSES: You may submit comments identified by Federal Docket
Management System Number FMCSA-2013-0069 by any of the following
methods:
     Federal eRulemaking Portal: www.regulations.gov. Follow
the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, DOT Building, 1200 New Jersey Avenue SE., between 9 a.m.
and 5 p.m. e.t., Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or
comments received, go to www.regulations.gov at any time and in the box
labeled ``SEARCH for'' enter FMCSA-2013-0069 and click on the tab
labeled ``SEARCH.''
    Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review a
Privacy Act notice regarding our public dockets in the January 17,
2008, issue of the Federal Register (73 FR 3316).
    Public Participation: The Federal eRulemaking Portal is available
24 hours each day, 365 days each year. You can get electronic
submission and retrieval help and guidelines by clicking on the word
``Help'' at the top of the Portal home page. If you want us to notify
you that we received your comments, please include a self-addressed,
stamped envelope or postcard, or print the acknowledgement page that
appears after submitting comments online. Comments received after the
comment closing date will be included in the docket, and we will
consider late comments to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Yager, Chief, FMCSA Driver
and Carrier Operations Division; Office of Bus and Truck Standards and
Operations; Telephone:<PHONE_NUMBER>. Email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Background

    FMCSA has authority under 49 U.S.C. 31315 and 31136(e) to grant
exemptions from certain parts of the FMCSRs. The Agency is required to
publish a notice of each exemption request in the Federal Register [49
CFR 381.315(a)]. FMCSA 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. FMCSA reviews safety
analyses and public comments, and determines whether granting the
exemption would likely achieve a level of safety equivalent to, or
greater than, the level of safety that would be obtained in the absence
of the exemption (49 CFR 381.305). The decision of the Agency must be
published in the Federal Register 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 provisions
from which the exemption is granted [49 CFR 381.315(b) and (c)]. The
notice must specify the effective period of the exemption, and its
terms or conditions. The exemption may be renewed [49 CFR 381.300(b)].

The HOS Rules

    Part 395 of volume 49 of the Code of Federal Regulations, ``Hours
of Service of Drivers,'' prescribes various maximums, such as driving
time, as well as minimums, such as the amount of off-duty time, that
the driver of a property-carrying CMV must obtain before beginning a
duty period. Section 395.3 prohibits driving after a driver has been on
duty for 60 hours in a period of 7 consecutive days, or 70 hours in 8
consecutive days if a company operates every day of the week. On-duty
time includes both time spent operating a CMV, recorded as ``on duty/
driving'' time, and time spent at the employer's behest on matters
other than driving, recorded as ``on duty/not driving'' time.

Application for Exemption

    Timberdoodle uses its CMVs to travel to conferences and
conventions, where it sets up sales displays. The CMV drivers staff the
display booth, which consumes more of their time than driving.
    Timberdoodle is asking that two of its drivers be exempt from the
HOS rule prohibiting driving after drivers accumulate a total of 60
hours of on-duty time in any period of 7 consecutive days. Timberdoodle
requests that, instead, its drivers be subject to the prohibition after
60 hours of driving time in any 7 consecutive day period. ``On duty/not
driving'' time would be removed from the calculation of total hours on
duty. Timberdoodle drivers would comply with all other HOS regulations.
    A copy of Timberdoodle's application for exemption is in Docket
FMCSA-2013-0069.

Request for Comments

    In accordance with 49 U.S.C. 31315(b)(4) and 31136(e), FMCSA
requests public comment on Timberdoodle's application for exemption
from section 395.3(b)(1). The Agency will consider all comments
received by close of business on May 23, 2013. Comments will be
available for examination in the docket as explained in the ADDRESSES
section of this notice under the term ``Docket.'' The Agency will
consider to the extent practicable comments received in the public
docket after the closing date of the comment period.

    Issued on: April 24, 2013.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2013-10525 Filed 5-2-13; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 88, Number 22 (Thursday, February 2, 2023)]
[Notices]
[Pages 7093-7094]
[FR Doc No: 2023-02161]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2020-N-2109]

Sami Anwar; Denial of Hearing; Final Debarment Order

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA or the Agency) is
denying a request for a hearing submitted by Sami Anwar (Anwar) and is
issuing an order under the Federal Food, Drug, and Cosmetic Act (the
FD&C Act) permanently debarring Anwar from providing services in any
capacity to a person having an approved or pending drug product
application. FDA bases this order on a finding that Anwar was convicted
of felonies under Federal law for conduct relating to the development
or approval of any drug product or otherwise relating to the regulation
of a drug product under the FD&C Act. Anwar failed to file with the
Agency information and analysis sufficient to create a basis for a
hearing concerning this action.

DATES: The order is applicable February 2, 2023.

ADDRESSES: Any application for special termination of debarment by
Anwar under section 306(d) of the FD&C Act (application) may be
submitted as follows:

Electronic Submissions

     Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. An application
submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because
your application will be made public, you are solely responsible for
ensuring that your application does not include any confidential
information that you or a third party may not wish to be posted, such
as medical information, your or anyone else's Social Security number,
or confidential business information, such as a manufacturing process.
Please note that if you include your name, contact information, or
other information that identifies you in the body of your application,
that information will be posted on https://www.regulations.gov.
     If you want to submit an application with confidential
information that you do not wish to be made available to the public,
submit the application as a written/paper submission and in the manner
detailed (see ``Written/Paper Submissions'' and ``Instructions'').

Written/Paper Submissions

    Submit written/paper submissions as follows:
     Mail/Hand Delivery/Courier (for written/paper
submissions): Dockets Management Staff (HFA-305), Food and Drug
Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
     For a written/paper application submitted to the Dockets
Management Staff, FDA will post your application, as well as any
attachments, except for information submitted, marked and identified,
as confidential, if submitted as detailed in ``Instructions.''
    Instructions: Your application must include the Docket No. FDA-
2020-N-2109. An application will be placed in the docket and, unless
submitted as ``Confidential Submissions,'' publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m.
and 4 p.m., Monday through Friday,<PHONE_NUMBER>.
     Confidential Submissions--To submit an application with
confidential information that you do not wish to be made publicly
available, submit your application only as a written/paper submission.
You should submit two copies total. One copy will include the
information you claim to be confidential with a heading or cover note
that states ``THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.'' The
Agency will review this copy, including the claimed confidential
information, in its consideration of your application. The second copy,
which will have the claimed confidential information redacted/blacked
out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management
Staff. If you do not wish your name and contact information to be made
publicly available, you can provide this information on the cover sheet
and not in the body of your application and you must identify this
information as ``confidential.'' Any information marked as
``confidential'' will not be disclosed except in accordance with 21 CFR
10.20 and other applicable disclosure law. For more information about
FDA's posting of comments to public dockets, see 80 FR 56469, September
18, 2015, or access the information at: https://www.govinfo.gov/content/pkg/FR-2015-09-18/pdf/2015-23389.pdf.
    Docket: For access to the docket, go to https://www.regulations.gov
and insert the docket number, found in brackets in the heading of this
document, into the ``Search'' box and follow the prompts and/or go to
the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville,
MD 20852 between 9 a.m. and 4 p.m., Monday through Friday, 240-402-
7500. Publicly available submissions may be seen in the docket.

FOR FURTHER INFORMATION CONTACT: Rachael Vieder Linowes, Office of
Scientific Integrity, Food and Drug Administration, 10903 New Hampshire
Ave., Bldg. 1, Rm. 4206, Silver Spring, MD 20993,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 306(a)(2) of the FD&C Act (21 U.S.C. 335a(a)(2)) mandates
permanent debarment if FDA finds that the individual has been convicted
of a felony under Federal law for conduct relating to the development
or approval, including the process for development or approval, of any
drug product or otherwise relating to the regulation of any drug
product under the FD&C Act.
    On October 1, 2020, the U.S. District Court for the Eastern
District of Washington entered a judgment against Anwar, after a jury
verdict, for 24 counts of wire fraud in violation of 18 U.S.C. 1349, 15
counts of mail fraud in violation of 18 U.S.C. 1341, 1 count of
conspiracy to commit mail fraud in violation of 18 U.S.C. 371, 6 counts
of fraudulently obtaining controlled substances in violation of 21
U.S.C. 843(a)(3), and 1 count of furnishing false or fraudulent
material information to

the Drug Enforcement Administration in violation of 21 U.S.C.
843(a)(4)(A). As described below, the basis of Anwar's convictions
stems from Anwar and his companies' falsifying research data for human
clinical trials, including forging and falsifying documents to make it
appear as though such clinical trials were performed and supervised by
a qualified and licensed physician and falsifying medical records and
data to admit dozens of ineligible subjects into the clinical trials.
    By letter dated January 6, 2021, FDA's Office of Regulatory Affairs
(ORA) notified Anwar of a proposal to permanently debar him from
providing services in any capacity to a person that has an approved or
pending drug product application and provided him an opportunity to
request a hearing. As explained in the notice, the basis for the
proposed debarment is Anwar's felony convictions in the U.S. District
Court for the Eastern District of Washington. According to ORA, Anwar
is subject to debarment based on a finding, under section 306(a)(2) of
the FD&C Act (21 U.S.C. 335a(a)(2)), that he was convicted of felonies
under Federal law for conduct relating to the development or approval
of any drug product or otherwise relating to the regulation of a drug
product under the FD&C Act.
    The proposal to debar states that the convictions relate to Anwar's
role as owner and operator of Mid-Columbia Research LLC and Zain
Research LLC, contract research organizations that oversaw and
conducted clinical research trials on a contract basis for various drug
sponsors. As described in the proposal, Anwar directed and carried out
a conspiracy to have his companies fraudulently pose as legitimate
human clinical research trial sites, and Anwar provided false clinical
research trial data regarding drug safety and drug efficacy to dozens
of drug companies and, through them, FDA, which regulates human
clinical trials in the United States. Anwar also posed as a doctor and
forged the signatures of the doctors he employed. In addition, Anwar
directed his employees to assist in committing the fraud, including:
(1) falsifying medical records and data to admit dozens of ineligible
research subjects, (2) falsifying research data vital signs, (3)
stealing blood samples taken from patients without their knowledge or
consent, (4) directing patients to dispose of study medications and
then falsely record dispensing as required by the study, (5)
fraudulently obtaining and acquiring opioids intended to be dispensed
to study subjects, and (6) falsifying subject diaries. In the proposal
to debar, ORA found that Anwar's convictions, and underlying conduct,
relate to the process for development or approval, including the
process for development or approval, of any drug product and for
conduct relating to the regulation of any drug product under the FD&C
Act.
    In a letter dated January 22, 2021, Anwar submitted a ``request for
an extension of the hearing.'' This letter did not contain a request
for a hearing, but the Director of the Office of Scientific Integrity,
who has the authority to rule upon debarment matters, construed it as
one. In addition, Anwar was given an extension to submit any
information or factual analyses in support of his request for a hearing
until April 15, 2021. Anwar has not filed any additional information to
support his request.
    Under the authority delegated to her by the Commissioner of Food
and Drugs, the Chief Scientist has considered Anwar's request for a
hearing. Hearings are granted only if there is a genuine and
substantial issue of fact. Hearings will not be granted on issues of
policy or law, on mere allegations, denials or general descriptions of
positions and contentions, or on data and information insufficient to
justify the factual determination urged (see 21 CFR 12.24(b)).
    Since Anwar has not presented any information to support his
hearing request, the Chief Scientist concludes that Anwar failed to
raise a genuine and substantial issue of fact requiring a hearing.
Therefore, the Chief Scientist denies Anwar's request for a hearing.

II. Findings and Order

    The Chief Scientist, under section 306(a)(2) of the FD&C Act and
under the authority delegated to her, finds that Sami Anwar has been
convicted of felonies under Federal law for conduct relating to the
development or approval, including the process for development or
approval, of any drug product or otherwise relating to the regulation
of a drug product under the FD&C Act.
    As a result of the foregoing findings, Sami Anwar is permanently
debarred from providing services in any capacity to a person with an
approved or pending drug product application under section 505, 512, or
802 of the FD&C Act (21 U.S.C. 355, 360b, or 382), or under section 351
of the Public Health Service Act (42 U.S.C. 262), effective (see DATES)
(21 U.S.C. 335a(c)(1)(B) and (c)(2)(A)(ii) and 21 U.S.C. 321(dd)). Any
person with an approved or pending drug product application who
knowingly uses the services of Anwar, in any capacity during his period
of debarment, will be subject to civil money penalties. See section
307(a)(6) of the FD&C Act (21 U.S.C. 335b(a)(6)). If Anwar, during his
period of debarment, provides services in any capacity to a person with
an approved or pending drug product application, he will be subject to
civil money penalties. See section 307(a)(7) of the FD&C Act (21 U.S.C.
335b(a)(7)). In addition, FDA will not accept or review any abbreviated
new drug applications submitted by or with the assistance of Anwar
during his period of debarment.

    Dated: January 27, 2023.
Namandj[eacute] N. Bumpus,
Chief Scientist.
[FR Doc. 2023-02161 Filed 2-1-23; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 85, Number 21 (Friday, January 31, 2020)]
[Rules and Regulations]
[Pages 5567-5570]
[FR Doc No: 2020-01294]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Parts 100 and 165

[Docket No. USCG-2018-0532]
RIN 1625-ZA38

Navigation and Navigable Waters, and Shipping; Technical,
Organizational, and Conforming Amendments for U.S. Coast Guard Field
District 1

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is issuing non-substantive technical,
organizational, and conforming amendments to existing regulations for
District 1. These changes reflect the current status of the identified
regulated navigation areas, special local regulations, safety zones and
security zones within the district. This rule removes safety zones and
special local regulations where the enforcement period has expired or
the event is no longer held. This rule also removes special local
regulations where the

event no longer meets the criteria for a permitted event and is not
suitable for coverage under a special local regulation in accordance
with Coast Guard regulations.

DATES: This rule is effective March 2, 2020.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-0532 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: For information about this document
call or email Craig D. Lapiejko, Coast Guard; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Comments
II. Abbreviations
III. Basis and Purpose
IV. Discussion of Rule
V. Regulatory Analyses
    A. Regulatory Planning and Review
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

CATEX Criteria for Categorical Exclusion
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    This rulemaking project was identified as part of the Coast Guard's
Regulatory Reform Task Force Initiative. These First District field
regulation changes were identified as part of the deregulation
identification process required by Executive Order 13771 (Reducing
Regulation and Controlling Regulatory Costs); Executive Order 13777
(Enforcing the Regulatory Reform Agenda Deregulatory Process) and
associated guidance issued in 2017. This rule makes technical and
editorial corrections in Title 33 of the Code of Federal Regulations
(CFR). Specifically, the rule removes safety zones and special local
regulations where the enforcement period has expired or the event is no
longer held. This rule also removes special local regulations where the
event no longer meets the criteria for a permitted event and is not
suitable for coverage under a special local regulation in accordance
with Coast Guard regulations. These changes are necessary to correct
errors, change addresses, and make other non-substantive changes that
improve the clarity of the CFR. This rule does not create or change any
substantive requirements.
    The changes to 33 CFR part 100 are specifically authorized under 46
U.S.C. 70041(a), which vests with the Commandant of the Coast Guard the
authority to issue regulations to promote the safety of life on
navigable waters during regattas or marine parades. The changes to 33
CFR part 165 are authorized under the general authority of 46 U.S.C.
70034, granting the Secretary of the Department of Homeland Security
broad authority to issue, amend, or repeal regulations as necessary to
implement 46 U.S.C. chapter 700, Ports and Waterways Safety Program.
The Secretary has delegated rulemaking authority under 46 U.S.C. 70034
to the Commandant via Department of Homeland Security Delegation No.
0170.1.\1\
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    \1\ The Coast Guard Authorization Act of 2018, Public Law 115-
282, 132 Stat. 4192 (Dec. 4, 2018) redesignated 33 U.S.C. 1231 as 46
U.S.C. 70034.
---------------------------------------------------------------------------

    The Coast Guard is issuing this rule without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exist for not publishing a notice of proposed rulemaking with
respect to this rule because it is unnecessary to do so. All of the
changes in this final rule involve only minor amendments to existing
regulations that will not result in a substantive effect on the public.

IV. Discussion of Rule

    The Coast Guard periodically issues technical, organizational, and
conforming amendments to existing regulations in titles 33 and 46 of
the CFR These ``technical amendments'' provide the public with more
accurate and current regulatory information but do not change the
effect on the public of any Coast Guard regulations.
    This rule amends Sec.  100.114 by deleting an event reference to
fireworks displays sponsored by the Bayville Crescent Club and moves it
to its correct location in part 165.
    Also in Sec.  100.150, this rule removes the reference to the New
York Super Boat Race on the Hudson River. This event has not been held
since 2013, and there are no future plans for holding the event.
    In part 165, we remove Sec.  165.130, which is a security zone in
Sandy Hook Bay, NJ, as this area is already regulated by the U.S. Army
Corps of Engineers at 33 CFR 334.102. Pursuant to Executive Order
12866, agencies shall avoid duplicative regulations with other
agencies.
    Also, in Sec.  165.151, which regulates Safety Zones, Fireworks
Displays, Air Shows and Swim Events in the Captain of the Port Long
Island Sound Zone, this rule makes several modifications to Table 1: In
item 5.1, Jones Beach Airshow, the rule removes the time of the event
and replaces it with the text ``at a time to be determined annually,''
because this event is not always held at the same time every year.
Also, in item 7.24, Village of Ashroken Fireworks, the rule corrects
the paragraph to read the correct position of 40[deg]45'39.93'' N,
072[deg]39'49.14'' W (NAD 83), as opposed to the incorrect coordinates
currently listed. Additionally, this rule adds new item 7.49 concerning
the Bayville Crescent Club Fireworks that was previously located at
Sec.  100.114.
    Additionally, in Sec.  165.160 which regulates Safety Zones;
Fireworks Displays and Swim Events in Coast Guard Captain of the Port
New York Zone, this rule removes event 1.1 in Table 1, Macy's 4th of
July Fireworks. This event has not been held at this Hudson River
location in several years and there are no future plans for holding the
event in the Hudson River.
    Finally, in Sec.  165.169, the rule removes paragraph (a)(9)(ii),
as vessels are not authorized within 100 yards of Rodman Neck. In 2004
the Coast Guard published a final rule establishing permanent safety
and security zones in portions of the waters around the New York City
Police Department ammunition depot on Rodman Neck in Eastchester Bay,
NY (69 FR 2666). The final rule created a 100-yard boundary zone around
Rodman Neck.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive Orders related to rulemaking. A summary of our analyses based
on these statutes or Executive Orders follows.

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 13771 (Reducing Regulation and Controlling Regulatory
Costs) directs agencies to reduce regulation and control regulatory
costs and provides that ``for every one new regulation issued, at least
two prior regulations be identified for elimination, and that the cost
of planned regulations be prudently managed and controlled through a
budgeting process.''
    The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866. Accordingly, OMB has not reviewed it. Because this rule is
not a significant regulatory action, this rule is exempt from the
requirements of Executive Order 13771. See the OMB Memorandum titled
``Guidance Implementing Executive Order 13771, titled `Reducing
Regulation and Controlling Regulatory Costs' '' (April 5, 2017).
    The Coast Guard proposes to revise its regulations to provide
updates and clarifications to existing regulatory text in title 33 of
the Code of Federal Regulations (CFR) parts 100 and 165. The revisions
include the removal of temporary safety zones and special local
regulations for past events, special local regulations for events no
longer held and special local regulations for events no longer
permitted. Normal navigation rules sufficiently cover the safety of
participants and spectators at events that are no longer suitable for
coverage under a special local regulation. This rule involves non-
substantive changes and internal agency practices and procedures; it
will not impose any additional costs on the public. The benefit of the
non-substantive changes is increased clarity of regulations.

B. Small Entities

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that
this rule would not have a significant economic impact on a substantial
number of small entities.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we want to assist small
entities in understanding this 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 the person in the FOR FURTHER
INFORMATION CONTACT section of this rule. 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.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247).

D. Collection of Information

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

E. Federalism

    A rule has implications for federalism under Executive Order 13132
(Federalism) if it has a substantial direct effect on States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. We have analyzed this rule under Executive Order 13132 and
have determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.

F. Indian Tribal Governments

    This 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.

G. 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 million (adjusted for
inflation) or more in any one year. Though this rule would not result
in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.

H. Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01, and Commandant Instruction 5090.1, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f). Our preliminary
determination is that this action is one of a category of actions that
do not individually or cumulatively have a significant effect on the
human environment. A preliminary Record of Environmental Consideration
supporting this determination is available in the docket where
indicated under the ADDRESSES section of this preamble.
    This rule meets the criteria for categorical exclusion (CATEX)
under paragraphs L54 and L60(b) in Appendix A, Table 1 of DHS Directive
023-01. CATEX L54 pertains to promulgation of regulations that are
editorial or procedural; and CATEX L60(b) pertains to regulations for
establishing, disestablishing, or changing Regulated Navigation Areas
and safety or security zones, notably for actions that disestablish or
reduce the size of the area or zone. These regulation changes are
consistent with the Coast Guard's maritime safety and stewardship
missions.

List of Subjects

33 CFR Part 100

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

33 CFR Part 165

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

    For the reasons stated in the preamble, the Coast Guard amends 33
CFR parts 100 and 165 as follows:

PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS

0
1. The authority citation for part 100 continues to read as follows:

    Authority: 46 U.S.C. 70041; 33 CFR 1.05-1.

Sec.  100.114   [Removed]

0
2. Remove Sec.  100.114

Sec.  100.150   [Removed]

0
3. Remove Sec.  100.150

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority: 46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

Sec.  165.130   [Removed]

0
5. Remove Sec.  165.130

0
6. In Sec.  165.151, amend Table 1 to Sec.  165.151 as follows:
0
a. In item 5.1, Jones Beach Airshow, remove the text ``from 9:30 a.m.
until 3:30 p.m. each day'', and add in its place the text ``at a time
to be determined annually'';
0
b. In item 7.24, Village of Ashroken Fireworks, revise the reference
``41[deg]55'54.04'' N,073[deg]21'27.97'' W (NAD 83)'' to read
``40[deg]45'39.93'' N, 072[deg]39'49.14'' W (NAD 83)''; and
0
c. Add an entry for item 7.48 in numerical order.
    The addition reads as follows:

Sec.  165.151   Safety Zones; Fireworks Displays, Air Shows and Swim
Events in the Captain of the Port Long Island Sound Zone.

* * * * *

                        Table 1 to Sec.   165.151
------------------------------------------------------------------------

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

                                * * * * *
7.49 Bayville Crescent Club Fireworks.....   Sponsor: Bayville
                                             Crescent Club, Bayville,
                                             NY.
                                             Time: 8 p.m. to 10
                                             p.m.
                                             Location: Cooper
                                             Bluff, Cove Neck, NY.

                                * * * * *
------------------------------------------------------------------------

* * * * *

Sec.  165.160   [Amended]

0
7. In Sec.  165.160, in Table 1 to Sec.  165.60, remove event 1.1,
Macy's 4th of July Fireworks.

Sec.  165.169   [Amended]

0
7. In Sec.  165.169, remove paragraph (a)(9)(ii) and redesignate
paragraph (a)(9)(iii) as paragraph (a)(9)(ii).

    Dated: January 8, 2020.
A.J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2020-01294 Filed 1-30-20; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 80, Number 184 (Wednesday, September 23, 2015)]
[Notices]
[Pages 57430-57432]
[FR Doc No: 2015-24052]

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

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2015-0078]

Petition for Waiver of Compliance

    In accordance with part 211 of Title 49 Code of Federal Regulations
(CFR), this document provides the public notice that by a document
dated July 24, 2015, North American Transit Services Association, a
subsidiary of the American Public Transportation Association (APTA),
has petitioned the Federal Railroad Administration (FRA) for a waiver
of compliance from certain

provisions of the Federal railroad safety regulations contained at 49
CFR parts 238--Passenger Equipment Safety Standards and 229--Railroad
Locomotive Safety Standards. Specifically, APTA requests relief from 49
CFR 238.105--Train electric hardware and software safety, which
requires a written hardware and software safety program to guide the
design, development, testing, integration, and verification of software
and hardware that controls or monitors equipment safety functions. APTA
also requests relief from 49 CFR 238.107--Inspection, testing and
maintenance plan; 238.109--Training, qualification and designation
program; 238.311--Single car test; 229.315--Operations and maintenance
manual; 229.317--Training and qualification program; and 229.319--
Operating personnel training. FRA assigned the petition Docket Number
FRA-2015-0078.
    APTA and its industry partners with support from Amtrak, leveraged
standards developed for freight electronically controlled pneumatic
brakes (see 49 CFR part 232, subpart G-Electronically Controlled
Pneumatic (ECP) Braking Systems) and have completed major efforts
toward introduction of ECP brake technology for use in revenue
passenger train service. Standards and regulations do not yet exist for
ECP brake systems applied to passenger trains; however, in support of
the development of standards and regulations, APTA and industry have
completed the following major activities:
    1. Written a draft standard based on Association of American
Railroads S-4200 series standards used for freight ECP applications,
and incorporated by reference in 49 CFR part 232, subpart G.
    2. Conducted a detailed preliminary Failure Mode Effects and
Criticality Analysis to support the development of an eventual train
electric software and safety program in compliance with 49 CFR 238.105.
    3. Successfully installed and completed static testing of (2) New
York Air Brake and (2) Wabtec ECP control valves on four Amtrak
Amfleet-1 coach cars.
    4. Successfully operated these cars in revenue trains consisting of
ECP cars operating in emulation mode with traditional 26-C control
valve-fitted coaches.
    5. Established a test committee to monitor the development process
and peer review all aspects of testing and provide assurance of safe
operating practices.
    6. Drafted a test plan for full ECP operation in accordance with 49
CFR 238.111--Pre-revenue service acceptance testing plan. Further
details of this plan will be developed by the test committee prior to
finalizing the test plan and the conduct of any testing.
    At this stage in development, dynamic tests of the full ECP brake
system are needed to verify performance and to aid in developing
industry standards and regulations for ECP design, operation and
maintenance for use on passenger trains. To conduct these tests, APTA
requests a test waiver that addresses the specified areas in accordance
with the provisions of 49 CFR 238.111. During this testing, while
approved specifications and standards are being defined based on test
results to comply with the requirement of 49 CFR 238.105, it is
requested that an interim passenger train hardware and software design
process, documentation, testing, and monitoring process be used based
on Amtrak test procedures, specific test plans outlined by the test
committee, and by brake supplier ECP performance information. To
provide alternate compliance with 49 CFR 238.107, 238.109, 229.315,
229.317, and 229.319, it is requested that an interim Amtrak operations
and training manual be used. Development of compliant operations
training and maintenance practices will be finalized after completion
of ECP brake testing, as these will evolve based on experience from on-
track pre-revenue and revenue testing. Amtrak will develop draft
operating guidelines to permit safe operation of closely monitored ECP
brake testing to be approved by the test committee. Amtrak will provide
amended operating rules to govern safe train handling procedures
related to ECP brake systems and related equipment for the specific
route in which testing will occur in accordance with 49 CFR 238.107,
and Amtrak will submit a list of locations on its system where ECP
brake system repairs may be performed in accordance with 49 CFR
238.111. A passenger train equipped with ECP brake system must be
inspected before being released from a shop or repair facility to
ensure proper and safe condition.
    APTA also requests that an interim single car brake test for ECP be
used during this testing while specifications, standards, and
regulations are being further defined based on test results. The single
car brake test incorporated by reference at 49 CFR 238.311 (APTA SS-M-
005-98 Rev. 2.1, Section 14.5) permits brake suppliers to define
specific testing procedures for electro-pneumatic controlled brakes. In
preparation of pre-revenue and revenue testing of full ECP brake
systems, each brake supplier will develop specific single car brake
test procedures to ensure safe operation of the ECP units. The test
procedures, based on the current standard, will be reviewed by the test
committee. Further development may be needed to codify a unifying
specific APTA standard for single car brake testing, updating APTA SS-
M-005-98 Rev 2.1.
    A copy of the petition and all attachments, as well as any written
communications concerning the petition, is available for review online
at www.regulations.gov and in person at the Department of
Transportation's (DOT) Docket Operations Facility, 1200 New Jersey
Avenue SE., W12-140, Washington, DC 20590. The Docket Operations
Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except
Federal Holidays.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested party
desires an opportunity for oral comment, they should notify FRA, in
writing, before the end of the comment period and specify the basis for
their request.
    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted by any of the following
methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Communications received by November 9, 2015 will be considered by
FRA before final action is taken. Comments received after that date
will be considered as far as practicable.
    Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the comment (or signing the document,
if submitted on behalf of an association, business, labor union, etc.).
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its processes. DOT posts these comments,
without edit, including

any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. See also
http://www.regulations.gov/#!privacyNotice for the privacy notice of
regulations.gov.

    Issued in Washington, DC, on September 16, 2015.
Ron Hynes,
Director, Office of Technical Oversight.
[FR Doc. 2015-24052 Filed 9-22-15; 8:45 am]
 BILLING CODE 4910-06-P


[Federal Register: November 19, 2008 (Volume 73, Number 224)]
[Notices]
[Page 69708-69710]
[DOCID:fr19no08-130]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-58934; File No. SR-NYSE-2008-98]

Self-Regulatory Organizations; New York Stock Exchange LLC; Order
Granting Approval of Proposed Rule Change, as Modified by Amendment No.
1, To Adopt an Additional Initial Listing Standard for Operating
Companies

November 12, 2008.

I. Introduction

    On October 1, 2008, the New York Stock Exchange LLC (``NYSE'' or
``Exchange''), filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change amending Section 102.01C of the Exchange's Listed
Company Manual (``Manual'') to adopt an additional initial listing
standard under which companies may qualify to list on the Exchange. On
October 10, 2008, the proposed rule change was published for comment in
the Federal Register.\3\ On November 10, 2008, NYSE filed Amendment No.
1 to the proposed rule change.\4\ The Commission received no comments
on the proposed rule change. This order approves the proposed rule
change, as modified by Amendment No. 1.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 58740 (October 6,
2008), 73 FR 60382 (``Notice'').
    \4\ Amendment No. 1 shows how Section 802.01B would be effected
by changes proposed in SR-NYSE-2008-97. Because Amendment No. 1 is
technical in nature, the Commission is not required to publish the
amendment for comment.
---------------------------------------------------------------------------

II. Description of the Proposal

    The Exchange has proposed to amend Section 102.01C of the Manual to
adopt an additional initial listing standard under which companies may
qualify to list on the Exchange. The Exchange has also proposed to
apply the continued listing standard applicable under Section 802.01B
to companies listed under the Earnings Test to companies listed under
the proposed new initial listing standard.
    The proposed new standard (the ``Assets and Equity Test'') is an
additional alternative standard under which companies may qualify to
list, and will not replace any of the existing initial listing
standards set forth in Section 102.01C. Companies qualifying to list
under the proposed new standard will have to meet the same holder,
publicly-held share and trading volume requirements as set forth in
Section 102.01A as companies that list under the existing initial
listing standards. Further, like companies that list under the existing
initial listing standards in Section 102.01C, companies that list under
the proposed standard must meet the same market value of publicly-held
shares requirements \5\ and $4 stock price requirement in Section
102.01B. Under the proposed standard, in addition to these other
requirements, a company at the time of listing would be required to
have, at a minimum, (i) $75 million in total assets, (ii) $50 million
in stockholders' equity and (iii) $150 million of total market
capitalization.\6\ The new standard also states that in considering the
listing under the Assets and Equity Test of companies transferring from
other markets, the Exchange will consider whether the company's
business prospects and operating results indicate that the company's
market capitalization value is likely to be sustained or increase over
time.
---------------------------------------------------------------------------

    \5\ Section 102.01B requires either $60 million market value in
the case of IPOs or $100 million market value for all other
companies.
    \6\ The total assets and stockholders equity that the Exchange
will use for qualification purposes will be taken from the company's
most recent balance sheet included in an SEC filing, in each case as
adjusted pursuant to Sections 102.01C(I)(3)(a) (adjusting for the
use of offering proceeds) and (b) (adjusting for the effects of
acquisitions and dispositions) as applicable. In the case of
companies listing in connection with an IPO, the company's
underwriter (or, in the case of a spin-off, the parent company's
investment banker or other financial advisor) must provide a written
representation that demonstrates the company's ability to meet the
$150 million global market capitalization requirement based upon the
completion of the offering (or distribution).
---------------------------------------------------------------------------

    Under the proposed rule, while companies that list under the Assets
and Equity Test will not be required to have any minimum operating
history prior to listing, companies that would otherwise have been
considered for listing under Section 102.06 of the Manual--the
Exchange's Acquisition Company standard (i.e., ``SPACs'')--will not
qualify for listing under the Assets and Equity Test. SPACs will
continue to be listed only under Section 102.06. The continued listing
standards, in Section 802.01B of the Manual, which currently apply to
companies that qualify to list under the Earnings Test is proposed to
be extended to companies that qualify to list under the new Assets and
Equity Test. Such companies will be considered to be below compliance
standards if their average global market capitalization over a
consecutive 30 trading-day period is less than $75 million and, at the
same time, total stockholders' equity is less than $75 million. In
addition, the holder, publicly-held share and trading volume
requirements of Section 802.01A, the $25 million global market
capitalization requirement in Section 802.01B, the $1.00 minimum stock
price requirement in Section 802.01C, Section 802.01D (``Other
Criteria''), and Section 802.01E (``SEC Annual Report Timely Filing
Criteria'') will also apply to companies qualifying under the Assets
and Equity Test.
    As discussed in more detail below, similar to recently adopted
provisions under Section 102.01C, companies may apply to list under the
Assets and Equity Test that have not previously had their common equity
securities registered under the Act but which have

sold common equity securities in a private placement, and wish to list
their common equity securities on the Exchange at the time of
effectiveness of a registration statement filed solely for the purpose
of allowing existing shareholders to sell their shares. For these
companies, the Exchange is proposing that they have a global market
capitalization of $180 million. In such cases, the Exchange may
exercise its discretion to determine that such a company has met the
global market capitalization requirement based on a combination of both
(i) an independent third party valuation of the company and (ii) the
most recent trading price for the company's common stock in a trading
system for unregistered securities operated by a national securities
exchange or a registered broker-dealer. The lesser of these values will
be used for determining the company's compliance with the Exchange's
global market capitalization requirement.
    The Exchange recently adopted provisions in relation to all of its
existing initial listings standards that enable it to use third party
valuations, in limited situations, as a basis for determining
compliance with the applicable market capitalization requirements.\7\
The circumstances under which third party valuations may be used in
connection with listings under the Assets and Equity Test will be
identical to those that are applied under the existing initial listing
standards. In particular, companies listing on this basis will be
required to demonstrate a global market capitalization of $180 million,
representing a 20% increase over the general market capitalization
requirement of the listing standard.\8\ The Exchange stated in its
filing that it is appropriate to use third party valuations in
connection with the determination of the market capitalization of
companies listing under the Assets and Equity Test, because the market
capitalization requirement is 20% higher than that normally required
under the standard, and the additional reliance on private market
trading prices as a verification of the adequacy of the valuation in
each case constitute, in the Exchange's view, significant safeguards to
ensure the validity of the market capitalization derived from the third
party valuation.
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release No. 58550 (September 15,
2008), 73 FR 54442 (September 19, 2008) (SR-NYSE-2008-68).
    \8\ The Commission notes that the global market capitalization
requirements under NYSE's other listing standards in 102.01C were
also increased 20% for the purposes of listing using a third party
valuation. Id.
---------------------------------------------------------------------------

    In its filing, the Exchange stated its belief that, upon adoption
of the proposed Assets and Equity Test, its listing standards will
continue to ensure that only companies of a significant size and
financial standing will be able to list on the Exchange. The Exchange
noted that, while many companies will qualify for listing under the
Assets and Equity Test that do not qualify under any other Exchange
listing standard, many companies will continue to qualify to list on
Nasdaq or the American Stock Exchange (n/k/a NYSE Alternext U.S. LLC or
``NYSE Alternext'' or ``Amex'') that will not meet any of the
Exchange's initial listing standards.
    The NYSE stated that the Assets and Equity Test requires all of the
elements that must be met by a company listing under the total value of
market capitalization option of Amex Initial Listing Standard 4.\9\
However, the Assets and Equity Test establishes equivalent or higher
thresholds for each of the relevant criteria.\10\
---------------------------------------------------------------------------

    \9\ See Amex Initial Listing Standard 4 (Amex Company Guide
Section 101(d)). Companies may list under Amex Initial Listing
Standard 4 without demonstrating any minimum market capitalization
if the company has total assets and total revenue of $75 million
each in its last fiscal year, or in two of its last three fiscal
years.
    \10\ See Notice, supra note 3 for a comparison with Amex Initial
Listing Standard 4.
---------------------------------------------------------------------------

    The Exchange's listing standards after adoption of the proposed
Assets and Equity Test will exceed those established by Exchange Act
Rule 3a51-1(a)(2) (the ``Penny Stock Rule'').\11\ The proposed
standard's $50 million stockholders' equity requirement exceeds the $5
million option and the proposed standard's $150 million total market
capitalization requirement exceeds the $50 million market
capitalization option in the Penny Stock Rule. In addition, the
Exchange requires all initial listings, regardless of which standard
they are listed under, to have $60 million (in the case of IPOs) or
$100 million (in all other cases) of market capitalization of publicly
held shares, a $4 stock price, 400 round lot holders and 1.1 million
publicly held shares, which meet or exceed all of the Penny Stock
Rule's remaining requirements.
---------------------------------------------------------------------------

    \11\ 17 CFR 240.3a51-1(a)(2).
---------------------------------------------------------------------------

    Companies listing under the Assets and Equity Test will have to
comply with all other applicable Exchange listing rules, including the
Exchange's corporate governance requirements. As with all other listing
applicants, the Exchange reserves the right to deny listing to any
company seeking to list under the Assets and Equity Test if the
Exchange determines that the listing of any such company is not in the
interests of the Exchange or the public interest.

III. Discussion

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act and the rules and
regulations thereunder applicable to a national securities exchange
and, in particular, with Section 6(b)(5) of the Act,\12\ which
requires, among other things, that the rules of a national securities
exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest,
and to not permit unfair discrimination between customers, issuers,
brokers, or dealers.\13\
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78f(b)(5).
    \13\ In approving this rule, the Commission has considered its
impact on efficiency, competition, and capital formation. 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    The development and enforcement of adequate standards governing the
initial and continued listing of securities on an exchange is an
activity of critical importance to financial markets and the investing
public. Listing standards, including those applicable to companies
transferring from another exchange, serve as a means for an exchange to
screen issuers and to provide listed status only to bona fide companies
that have sufficient public float, investor base, and trading interest
to provide the depth and liquidity necessary to promote fair and
orderly markets. Adequate standards are especially important given the
expectations of investors regarding exchange trading and the imprimatur
of listing on a particular market. Once a security has been approved
for initial listing, maintenance criteria allow an exchange to monitor
the status and trading characteristics of that issue to ensure that it
continues to meet the exchange's standards for market depth and
liquidity so that fair and orderly markets can be maintained.
    The Commission recognizes that this is the first time that NYSE
would be adopting a traditional equity security listing standard under
Section 102.01C that does not require some previous operating history
of the listing company and that the proposed standards are low

enough to qualify companies on the NYSE that previously would not
qualify.\14\ However, as described above, the quantitative requirements
of the new Assets and Equity Test exceed, and are more rigorous than,
an existing Amex listing standard and meet or exceed the penny stock
requirements in Exchange Act Rule 3a51-1(a)(2). Further, companies
listing under the new Assets and Equity Test would still have to meet
all the distribution, market value, and price requirements under
Sections 102.01A and Section 102.01B of the Manual, and comply with all
the corporate governance requirements as any other listed company.\15\
The Commission believes that these requirements, taken together, will
help to ensure that the company has the requisite liquidity for listing
on the Exchange and the maintenance of fair and orderly markets,
consistent with the Act. The Commission also finds that the continued
listing standards are appropriate and help ensure that only those
companies with adequate depth and liquidity remain listed on the
Exchange. We note that these continued listing standards are the same
as for those companies that currently qualify to list under the
Earnings Test.
---------------------------------------------------------------------------

    \14\ Section 102.06 of the Manual, however, does allow the
listing of SPACs, which do not have a prior operating history. As
noted above, SPACs cannot qualify to list under the new Assets and
Equity Test.
    \15\ See supra text accompanying note 5.
---------------------------------------------------------------------------

    Finally, the Commission is approving the adoption of procedures
similar to those previously approved by the Commission to qualify for
listing upon a selling shareholders registration rather than an
underwritten offering for the same reasons noted in the original
approval order.\16\ As discussed above, the Commission had previously
permitted, under limited circumstances, the use of third party
valuations to meet applicable market capitalization requirements to
qualify for listing under the various sections of Section 102.01C,\17\
and the Exchange is proposing to extend these identical requirements to
the newly adopted Assets and Earnings Test. For third party valuations
using the Assets and Earnings Test, the Exchange has proposed to
increase the market capitalization requirement to $180,000,000 million,
rather than the $150,000,000 currently proposed for other companies. As
noted above, this increase is consistent with the 20% increase adopted
for using a third party valuation for the other standards in
102.01C.\18\ The Commission believes the provisions allowing the use of
third party valuations for companies listing using the new Assets and
Equity Test raises no new regulatory issues that were not discussed in
the original approval order.\19\
---------------------------------------------------------------------------

    \16\ See supra note 7.
    \17\ See supra note 7, 73 FR at 54443.
    \18\ The Commission notes that in relying on the third party
valuation, the Exchange must consider any market factors or factors
particular to the listing applicant that would cause concern that
the value of the company had diminished since the date of Valuation
and continue to monitor the company and the appropriateness of
relying on the Valuation up until the time of listing. The
Commission expects that where these factors indicate that the value
calculated may not be an accurate estimation of a company's market
value, the Exchange will use its discretion to determine not to list
such company pursuant to the proposed provisions.
    \19\ See supra note 7.
---------------------------------------------------------------------------

    In approving the new Assets and Equity Test, the Commission expects
that the Exchange will deny listing to any company seeking to list
pursuant to the proposed rule change if the Exchange determines that
the listing of any such company is not in the interests of the Exchange
or the public interest.
    For the reasons set forth above, the Commission finds that the
proposed rule change is consistent with the Act.

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\20\ that the proposed rule change (SR-NYSE-2008-98), as modified
by Amendment No. 1, be, and hereby is, approved.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\21\
---------------------------------------------------------------------------

    \21\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Acting Secretary.
[FR Doc. E8-27423 Filed 11-18-08; 8:45 am]

BILLING CODE 8011-01-P