[Federal Register Volume 79, Number 6 (Thursday, January 9, 2014)]
[Notices]
[Pages 1662-1665]
[FR Doc No: 2014-00118]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-71232; File No. SR-NYSEArca-2013-118]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
of Amendment No. 2 and Order Granting Accelerated Approval of a
Proposed Rule Change, as Modified By Amendments Nos. 1 and 2, To List
and Trade Shares of the Market Vectors Short High-Yield Municipal Index
ETF Under NYSE Arca Equities Rule 5.2(j)(3), Commentary .02 January 3,
2014.

I. Introduction

    On October 30, 2013, NYSE Arca, Inc. (``Exchange'' or ``NYSE
Arca'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade shares (``Shares'') of the
Market Vectors Short High-Yield Municipal Index ETF (``Fund'') under
NYSE Arca Equities Rule 5.2(j)(3), Commentary .02. On November 8, 2013,
the Exchange filed Amendment No. 1 to the proposal.\3\ The proposed
rule change, as modified by Amendment No. 1 thereto, was published for
comment in the Federal Register on November 19, 2013.\4\ On December
31, 2013, the Exchange filed Amendment No. 2 to the proposal.\5\ The
Commission received no comments on the proposal. This order approves on
an accelerated basis the proposed rule change, as modified by
Amendments No. 1 and 2 thereto.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ In Amendment No. 1, the Exchange: (1) Deleted a sentence
relating to the Fund holding depositary receipts and to-be-announced
transactions; (2) added a phrase that states that the Administrator,
through the National Securities Clearing Corporation (``NSCC''),
will make available Indicative Per Share Portfolio Value on a
continuous basis throughout the day; (3) made clarifying changes to
reflect that the Fund will limit itself to holding up to 15% of its
net assets in illiquid assets, not just illiquid securities; and (4)
modified certain cross-references.
    \4\ See Securities Exchange Act Release No. 70871 (November 14,
2013), 78 FR 69503 (``Notice'').
    \5\ In Amendment No. 2, the Exchange deleted a sentence to
clarify that Barclays Capital, Inc. (``Index Provider''), which
publishes Barclays Municipal High Yield Short Duration Index (1) is
a registered broker-dealer and has implemented a fire wall with
respect to its relevant personnel regarding access to information
concerning the composition and/or changes to the Barclays Municipal
High Yield Short Duration Index; (2) is affiliated with a broker-
dealer and has implemented a fire wall with respect to its broker-
dealer affiliate regarding access to information concerning the
composition and/or changes to the Barclays Municipal High Yield
Short Duration Index; and (3) as well as its broker-dealer affiliate
have implemented procedures designed to prevent the use and
dissemination of material, non-public information regarding the
Barclays Municipal High Yield Short Duration Index.
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II. Description of the Proposed Rule Change

    The Exchange proposes to list and trade the Shares under NYSE Arca
Equities Rule 5.2(j)(3), Commentary .02, which governs the listing and
trading of Investment Company Units (``Units'') based on fixed income
securities indexes. The Fund is a series of the Market Vectors ETF
Trust (``Trust'').\6\ Van Eck Associates Corporation will be the
investment adviser (``Adviser'') for the Fund. Van Eck Securities
Corporation will be the Fund's distributor and administrator for the
Fund (``Administrator'') and will be responsible for certain clerical,
recordkeeping and/or bookkeeping services. The Bank of New York Mellon
will be the custodian of the Fund's assets and provides transfer agency
and fund accounting services to the Fund.
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    \6\ On August 27, 2012, the Trust filed an amendment to its
registration statement on Form N-1A under the Securities Act of 1933
(15 U.S.C. 77a) and the Investment Company Act of 1940 (``1940
Act'') (15 U.S.C. 80a-1) (File Nos. 333-123257 and 811-10325) (the
``Registration Statement''). The description of the operation of the
Trust and the Fund herein is based, in part, on the Registration
Statement. In addition, the Commission has issued an order granting
certain exemptive relief to the Trust under the 1940 Act. See
Investment Company Act Release No. 28021 (October 24, 2007) (File
No. 812-13426) (``Exemptive Order'').
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    The investment objective of the Fund will be to seek to replicate
as closely as possible, before fees and expenses, the price and yield
performance of the Barclays Municipal High Yield Short Duration Index
(``Short High Yield Index'' or ``Index''). According to the Exchange,
the Advisor will attempt to approximate the investment performance of
the Index using a ``passive'' or indexing investment approach, and
expects that, over time, the correlation between the Fund's performance
(before fees and expenses) and that of the Index will be 95% or better.
The Adviser will utilize a ``sampling'' methodology to achieve the
Fund's objective.

A. Primary Investments

    Normally,\7\ the Fund will invest at least 80% of its total assets
in securities that compose the Short High Yield Index. Depositary
receipts or to-be-announced transactions representing securities in the
Short High Yield Index may be used by the Fund in seeking performance
that corresponds to the Short High Yield Index, and in managing cash
flows and may count towards the Fund's 80% policy.
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    \7\ According to the Exchange, the word ``normally'' means,
without limitation, the absence of extreme volatility or trading
halts in the equity markets or the financial markets generally;
operational issues causing dissemination of inaccurate market
information; or force majeure type events such as systems failure,
natural or man-made disaster, act of God, armed conflict, act of
terrorism, riot or labor disruption or any similar intervening
circumstance.
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B. Other Investments

    While the Fund normally will invest at least 80% of its total
assets in securities that compose the Index, the Fund may invest its
remaining assets in other financial instruments, as described below.
    The Fund may invest in securities not included in the Short High
Yield Index, money market instruments, including repurchase agreements
or other funds which invest exclusively in money market instruments,
convertible securities, structured notes (notes on which the amount of
principal repayment and interest payments are based on the movement of
one or more specified factors, such as the movement of a particular
stock or stock index), and certain derivative instruments that are
mentioned below. The Fund may also invest, to the extent permitted by
the 1940 Act, in other affiliated and unaffiliated funds, such as open-
end or closed-end management investment companies, including other
exchange-traded funds (``ETFs'').\8\
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    \8\ While the Fund may invest in inverse ETFs, the Fund will not
invest in leveraged (e.g., 2X, -2X, 3X or -3X) ETFs.
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    The Fund may invest in repurchase agreements with commercial banks,
brokers or dealers to generate income from its excess cash balances and
to invest securities lending cash collateral.
    The Fund may use exchange-traded futures contracts and exchange-
traded or over-the-counter options thereon, together with positions in
cash and money market instruments, to simulate full investment in the
Index.
    The Fund may use cleared or non-cleared index, interest rate or
credit default swap agreements. Swap agreements are contracts between
parties in which one party agrees to make payments to the other party
based on the change in market value or level of a specified index or
asset.
    The Fund may invest in exchange-traded warrants, which are equity
securities in the form of options issued by a corporation which give
the holder the right to purchase stock, usually at a price that is
higher than the market price at the time the warrant is issued.
    The Fund may invest in participation notes, which are issued by
banks or

broker-dealers and are designed to offer a return linked to the
performance of a particular underlying equity security or market.
    The Fund will only enter into transactions in derivative
instruments with counterparties that the Adviser reasonably believes
are capable of performing under the contract and will post as
collateral as required by the counterparty.\9\
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    \9\ According to the Exchange, the Fund will seek, where
possible, to use counterparties, as applicable, whose financial
status is such that the risk of default is reduced; however, the
risk of losses resulting from default is still possible. The Adviser
will evaluate the creditworthiness of counterparties on a regular
basis. In addition to information provided by credit agencies, the
Adviser will review approved counterparties using various factors,
which may include the counterparty's reputation, the Adviser's past
experience with the counterparty and the price/market actions of
debt of the counterparty.
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    The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including Rule 144A securities deemed illiquid by the Adviser, in
accordance with Commission guidance.\10\ The Fund will monitor its
portfolio liquidity on an ongoing basis to determine whether, in light
of current circumstances, an adequate level of liquidity is being
maintained, and will consider taking appropriate steps in order to
maintain adequate liquidity if, through a change in values, net assets,
or other circumstances, more than 15% of the Fund's net assets are held
in illiquid assets. According to the Exchange, illiquid assets include
securities subject to contractual or other restrictions on resale and
other instruments that lack readily available markets as determined in
accordance with Commission staff guidance.
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    \10\ According to the Exchange, in reaching liquidity decisions,
the Adviser may consider the following factors: The frequency of
trades and quotes for the security; the number of dealers wishing to
purchase or sell the security and the number of other potential
purchasers; dealer undertakings to make a market in the security;
and the nature of the security and the nature of the marketplace
trades (e.g., the time needed to dispose of the security, the method
of soliciting offers, and the mechanics of transfer).
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    Additional information regarding the Shares, the Fund, and the
Index, including procedures for creating and redeeming Shares,
transaction fees and expenses, dividends, distributions, taxes, risks,
and reports to be distributed to beneficial owners of the Shares can be
found in the Notice,\11\ the Registration Statement,\12\ and on the Web
site for the Fund (www.marketvectorsetfs.com).
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    \11\ See supra, note 4.
    \12\ See supra, note 6.
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C. The Need for the Proposed Rule Change and Exchange Representations
Related Thereto

    Commentary .02(a) to NYSE Arca Equities Rule 5.2(j)(3) permits the
generic listing of Units that meet all of the initial and continued
listing requirements of the rule. According to the Exchange, the Shares
satisfy all of the generic listing criteria except for those set forth
in Commentary .02(a)(2), which requires that components that in the
aggregate account for at least 75% of the weight of the index or
portfolio each shall have a minimum original principal amount
outstanding of $100 million or more. Accordingly, the Exchange filed
this proposed rule change seeking to list and trade the Shares.
    The Exchange represents that: (1) Except for Commentary .02(a)(2)
to NYSE Arca Equities Rule 5.2(j)(3), the Shares satisfy all of the
generic listing standards under NYSE Arca Equities Rule 5.2(j)(3); (2)
the continued listing standards under NYSE Arca Equities Rules
5.2(j)(3) and 5.5(g)(2) applicable to Units shall apply to the Shares;
and (3) the Trust is required to comply with Rule 10A-3 under the Act
\13\ for the initial and continued listing of the Shares. In addition,
the Exchange represents that the Shares will comply with all other
requirements applicable to Units including, but not limited to,
requirements relating to the dissemination of key information such as
the value of the Index and the applicable Intraday Indicative Value
(``IIV''),\14\ rules governing the trading of equity securities,
trading hours, trading halts, surveillance, and the Information
Bulletin (``Bulletin'') to Equity Trading Permit Holders (``ETP
Holders''), as set forth in Exchange rules applicable to Units and
prior Commission orders approving the generic listing rules applicable
to the listing and trading of Units.\15\
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    \13\ 17 CFR 240.10A-3.
    \14\ The IIV will be widely disseminated by one or more major
market data vendors at least every 15 seconds during the Exchange's
Core Trading Session of 9:30 a.m. to 4:00 p.m., Eastern time. The
Exchange states that it understands that several major market data
vendors display or make widely available IIVs taken from the
Consolidated Tape Association (``CTA'') or other data feeds.
    \15\ See, e.g., Securities Exchange Act Release Nos. 55783 (May
17, 2007), 72 FR 29194 (May 24, 2007) (SR-NYSEArca-2007-36) (order
approving NYSE Arca generic listing standards for Units based on a
fixed income index); 44551 (July 12, 2001), 66 FR 37716 (July 19,
2001) (SR-PCX-2001-14) (order approving generic listing standards
for Units and Portfolio Depositary Receipts); 41983 (October 6,
1999), 64 FR 56008 (October 15, 1999) (SR-PCX-98-29) (order
approving rules for listing and trading of Units).
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III. Discussion and Commission's Findings

    The Commission has carefully reviewed the proposed rule change and
finds that it is consistent with the requirements of Section 6 of the
Act \16\ and the rules and regulations thereunder applicable to a
national securities exchange.\17\ In particular, the Commission finds
that the proposal is consistent with Section 6(b)(5) of the Act,\18\
which requires, among other things, that the Exchange's rules 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 facilitating transactions in
securities, to remove impediments to, and perfect the mechanism of, a
free and open market and a national market system, and, in general, to
protect investors and the public interest.
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    \16\ 15 U.S.C. 78f.
    \17\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \18\ 15 U.S.C. 78f(b)(5).
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    The Commission notes that the Exchange represents that the Shares
will comply with all requirements applicable to Units including, but
not limited to, requirements relating to the dissemination of key
information such as the value of the Index and the applicable IIV,\19\
rules governing the trading of equity securities, trading hours,
trading halts, surveillance, and the Bulletin to ETP Holders, as set
forth in Exchange rules applicable to Units and prior Commission orders
approving the generic listing rules applicable to the listing and
trading of Units.\20\
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    \19\ The IIV will be widely disseminated by one or more major
market data vendors at least every 15 seconds during the Exchange's
Core Trading Session of 9:30 a.m. to 4:00 p.m., Eastern time. The
Exchange states that it understands that currently several major
market data vendors display and/or make widely available IIVs taken
from the CTA or other data feeds.
    \20\ See, e.g., Securities Exchange Act Release Nos. 55783 (May
17, 2007), 72 FR 29194 (May 24, 2007) (SR-NYSEArca-2007-36) (order
approving NYSE Arca generic listing standards for Units based on a
fixed income index); 44551 (July 12, 2001), 66 FR 37716 (July 19,
2001) (SR-PCX-2001-14) (order approving generic listing standards
for Units and Portfolio Depositary Receipts); 41983 (October 6,
1999), 64 FR 56008 (October 15, 1999) (SR-PCX-98-29) (order
approving rules for listing and trading of Units).
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    Except for Commentary .02(a)(2) to NYSE Arca Equities Rule
5.2(j)(3), the Shares satisfy all other requirements for generic
listing under the rule. Although, according to the Exchange only 15.66%
of the weight of the Index components, as of November 27, 2012, had a
minimum original principal amount

outstanding of $100 million or more, the Exchange provided statistical
support for its assertion that Index is sufficiently broad-based to
deter potential manipulation. According to the Exchange, the most
heavily weighted component of the Index represents 2.67% of the weight
of the Index, and the five most heavily weighted components represent
10.67% of the weight of the Index.\21\ Additionally, the Exchange
states: (1) The total dollar amount outstanding of issues in the Index
was approximately $757 billion; (2) the average dollar amount
outstanding of issues in the Index was approximately $394 million; and
(3) the Index is composed of approximately 1,935 issues and 530 unique
issuers.\22\ Additionally, the Exchange represents that the Index
Provider, a registered broker-dealer, has implemented a fire wall with
respect to its relevant personnel regarding access to information
concerning the composition of or changes to the Index. The Index
Provider is also affiliated with a broker-dealer and has implemented a
fire wall with respect to its broker-dealer affiliate regarding access
to information concerning the composition of or changes to the Index.
The Index Provider and its broker-dealer affiliate have implemented
procedures designed to prevent the use and dissemination of material,
non-public information regarding the Index.\23\ For these reasons, the
Commission believes that the Exchange has met its burden of showing
that the proposed rule change is consistent with Section 6(b)(5) of the
Act which requires, among other things, that the Exchange's rules be
designed to prevent fraudulent and manipulative acts and practices.
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    \21\ See Notice, supra note 4, 78 FR 69505. The Commission notes
that Commentary .02(a)(4) to NYSE Arca Equities Rule 5.2(j)(3)
requires that no component fixed-income security (excluding Treasury
Securities and GSE Securities, as defined therein) represent more
than 30% of the weight of the index or portfolio and that the five
most heavily weighted component fixed-income securities in the index
or portfolio shall not in the aggregate account for more than 65% of
the weight of the index or portfolio.
    \22\ See Notice, supra note 4, 78 FR 69505.
    \23\ See supra note 7.
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    The Commission finds that the proposal to list and trade the Shares
on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the
Act,\24\ which sets forth Congress' finding that it is in the public
interest and appropriate for the protection of investors and the
maintenance of fair and orderly markets to assure the availability to
brokers, dealers, and investors of information with respect to
quotations for, and transactions in, securities. Quotation and last-
sale information for the Shares will be available via the CTA high-
speed line. In addition, information regarding market price and trading
volume of the Shares will be continually available on a real-time basis
throughout the day on brokers' computer screens and other electronic
services.
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    \24\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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    The Commission further believes that the proposal to list and trade
the Shares is reasonably designed to promote fair disclosure of
information that may be necessary to price the Shares appropriately and
to prevent trading when a reasonable degree of transparency cannot be
assured. The IIV of the Shares will be widely disseminated by one or
more major market data vendors at least every 15 seconds during the
Exchange's Core Trading Session (9:30 a.m., Eastern time to 4:00 p.m.,
Eastern time), as required by NYSE Arca Equities Rule 5.2(j)(3),
Commentary .02 (c).\25\ The current value of the Index will be widely
disseminated by one or more major market data vendors at least once per
day, as required by NYSE Arca Equities Rule 5.2(j)(3), Commentary .02
(b)(ii). The components of the Index and their percentage weighting
will be available from major market data vendors. In addition, the
portfolio of securities held by the Fund will be disclosed daily on the
Fund's Web site at www.marketvectorsetfs.com after the close of trading
on the Exchange and prior to the opening of trading on the Exchange the
following day. The Administrator, through the NSCC, will make available
on each business day, immediately prior to the opening of business on
the Exchange (currently 9:30 a.m. Eastern time), the list of securities
needed to create Shares, as well as the list of securities to be
delivered in connection with Share redemptions.
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    \25\ According to the Exchange, several major market data
vendors display or make widely available IIVs taken from CTA or
other data feeds.
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    In support of this proposal, the Exchange has made representations,
including:
    (1) The Exchange deems the Shares to be equity securities, thus
rendering trading in the Shares subject to the Exchange's existing
rules governing the trading of equity securities.
    (2) The Shares will conform to the initial and continued listing
criteria under NYSE Arca Equities Rule 5.2(j)(3) and 5.5(g)(2).
    (3) The Exchange has in place surveillance procedures that are
adequate to properly monitor trading in the Shares in all trading
sessions and to deter and detect violations of Exchange rules and
applicable federal securities laws.
    (4) The Financial Industry Regulatory Authority, on behalf of the
Exchange, will communicate as needed regarding trading in the Shares
with other markets that are members of the ISG or with which the
Exchange has in place a comprehensive surveillance sharing agreement.
    (5) The Fund may hold up to an aggregate amount of 15% of its net
assets in illiquid assets (calculated at the time of investment),
including Rule 144A securities deemed illiquid by the Adviser,
consistent with Commission guidance. The Fund will monitor its
portfolio liquidity on an ongoing basis to determine whether, in light
of current circumstances, an adequate level of liquidity is being
maintained, and will consider taking appropriate steps in order to
maintain adequate liquidity if, through a change in values, net assets,
or other circumstances, more than 15% of its net assets are held in
illiquid securities.\26\
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    \26\ See Amendment No. 1, supra note 3.
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    This approval order is based on the Exchange's representations. For
the foregoing reasons, the Commission finds that the proposed rule
change is consistent with Section 6(b)(5) of the Act \27\ and Section
11A(a)(1)(C)(iii) of the Act \28\ and the rules and regulations
thereunder applicable to a national securities exchange.
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    \27\ 15 U.S.C. 78f(b)(5).
    \28\ 15 U.S.C. 78k-1(a)(1)(C)(iii).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning whether Amendment No. 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 No. SR-NYSEArca-2013-118 on the subject line.

Paper Comments

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

All submissions should refer to File No. SR-NYSEArca-2013-118. 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 Web site (http://www.sec.gov/rules/sro.shtml). Copies of
the submission, all subsequent amendments, all written statements with
respect to the proposed rule change that are filed with the Commission,
and all written communications relating to the proposed rule change
between the Commission and any person, other than those that may be
withheld from the public in accordance with the provisions of 5 U.S.C.
552, will be available for Web site viewing and printing in the
Commission's Public Reference Room, 100 F Street NE., Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File No. SR-NYSEArca-2013-118 and should be
submitted on or before January 30, 2014.

Accelerated Approval of Proposed Rule Change, as Modified by Amendment
No. 2

    As discussed above,\29\ through Amendment No. 2, the Exchange
revises the proposed rule change by providing greater detail about how
the Funds' NAVs are calculated and the availability of price
information regarding the Funds' holdings. The Commission believes that
Amendment No. 2 provides more support for the Exchange's contention
that its proposed rule change consistent with the Section 6(b)(5) of
the Act.\30\ In particular, Amendment No. 2 clarified that: (1) The
Index Provider is a registered broker-dealer and has implemented a fire
wall with respect to its relevant personnel regarding access to
information concerning the composition and/or changes to the Index; (2)
the Index Provider is affiliated with a broker-dealer and has
implemented a fire wall with respect to its broker-dealer affiliate
regarding access to information concerning the composition and/or
changes to the Index; and (3) the Index Provider and its broker-dealer
affiliate have implemented procedures designed to prevent the use and
dissemination of material, non-public information regarding the Index.
Accordingly, the Commission finds good cause, pursuant to Section
19(b)(2) of the Act,\31\ to approve the proposed rule change, as
modified by Amendments Nos. 1 and 2, prior to the 30th day after the
date of publication of notice in the Federal Register.
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    \29\ See note 5, supra.
    \30\ 15 U.S.C. 78s(b)(5).
    \31\ 15 U.S.C. 78s(b)(2).
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V. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\32\ that the proposed rule change (SR-NYSEArca-2013-118) as
modified by Amendments No. 1 and 2 thereto be, and it hereby is,
approved on an accelerated basis.
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    \32\ 15 U.S.C. 78s(b)(2).
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    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).

Kevin M. O'Neill,
Deputy Secretary.
[FR Doc. 2014-00118 Filed 1-8-14; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 81, Number 168 (Tuesday, August 30, 2016)]
[Notices]
[Pages 59725-59726]
[FR Doc No: 2016-20776]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[FMCSA Docket No. FMCSA-[2016-0041]

Qualification of Drivers; Exemption Applications; Diabetes
Mellitus

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

ACTION: Notice of final disposition.

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SUMMARY: FMCSA confirms its decision to exempt 57 individuals from its
rule prohibiting persons with insulin-treated diabetes mellitus (ITDM)
from operating commercial motor vehicles (CMVs) in interstate commerce.
The exemptions enable these individuals to operate CMVs in interstate
commerce.

DATES: The exemptions were effective on July 28, 2016. The exemptions
expire on July 28, 2018.

FOR FURTHER INFORMATION CONTACT: Christine A. Hydock, Chief, Medical
Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE., Room W64-113,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.
e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

I. Electronic Access

    You may see all the comments online through the Federal Document
Management System (FDMS) at: http://www.regulations.gov.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov and/or Room W12-140 on the
ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. 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.

II. Background

    On June 28, 2016, FMCSA published a notice of receipt of Federal
diabetes exemption applications from 57 individuals and requested
comments from the public (81 FR 42035. The public comment period closed
on July 28, 2016 and 1 comment was received.
    FMCSA has evaluated the eligibility of the 57 applicants and
determined that granting the exemptions to these individuals would
achieve a level of safety equivalent to or greater than the level that
would be achieved by complying with the current regulation 49 CFR
391.41(b)(3).

Diabetes Mellitus and Driving Experience of the Applicants

    The Agency established the current requirement for diabetes in 1970
because several risk studies indicated that drivers with diabetes had a
higher rate of crash involvement than the general population. The
diabetes rule provides that ``A person is physically qualified to drive
a commercial motor vehicle if that person has no established medical
history or clinical diagnosis of diabetes mellitus currently requiring
insulin for control'' (49 CFR 391.41(b)(3)).
    FMCSA established its diabetes exemption program, based on the
Agency's July 2000 study entitled ``A Report to Congress on the
Feasibility of a Program to Qualify Individuals with Insulin-Treated
Diabetes Mellitus to Operate in Interstate Commerce as Directed by the
Transportation Act for the 21st Century.'' The report concluded that a
safe and practicable protocol to allow some drivers with ITDM to
operate CMVs is feasible. The September 3, 2003 (68 FR 52441), Federal
Register notice in conjunction with the November 8, 2005 (70 FR 67777),
Federal Register notice provides the current protocol for allowing such
drivers to operate CMVs in interstate commerce.
    These 57 applicants have had ITDM over a range of 1 to 35 years.
These applicants report no severe hypoglycemic reactions resulting in
loss of consciousness or seizure, requiring the assistance of another
person, or resulting in impaired cognitive function that occurred
without warning symptoms, in the past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in the past 5 years. In each case,
an endocrinologist verified that the driver has demonstrated a
willingness to properly monitor and manage his/her diabetes mellitus,
received education related to diabetes management, and is on a stable
insulin regimen. These drivers report no other disqualifying
conditions, including diabetes-related complications. Each meets the
vision requirement at 49 CFR 391.41(b)(10).
    The qualifications and medical condition of each applicant were
stated and discussed in detail in the June 28, 2016, Federal Register
notice and they will not be repeated in this notice.

III. Discussion of Comments

    FMCSA received 1 comment in this proceeding. Deb Carlson stated
that the state of Minnesota is in favor of granting exemptions to David
J. Ahlers, Michael J. Beaver, Kirk A. Erickson, Kevin R. Holz, Duane A.
Leazott, and David E. Roth, all of whom are drivers from Minnesota.

IV. Basis for Exemption Determination

    Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption
from the diabetes requirement in 49 CFR 391.41(b)(3) if the exemption
is likely to achieve an equivalent or greater level of safety than
would be achieved without the exemption. The exemption allows the
applicants to operate CMVs in interstate commerce.
    To evaluate the effect of these exemptions on safety, FMCSA
considered medical reports about the applicants' ITDM and vision, and
reviewed the treating endocrinologists' medical opinion related to the
ability of the driver to safely operate a CMV while using insulin.
    Consequently, FMCSA finds that in each case exempting these
applicants from the diabetes requirement in 49 CFR 391.41(b)(3) is
likely to achieve a level of safety equal to that existing without the
exemption.

V. Conditions and Requirements

    The terms and conditions of the exemption will be provided to the
applicants in the exemption document and they include the following:
(1) That each individual submit a quarterly monitoring checklist
completed by the treating endocrinologist as well as an annual
checklist with a comprehensive medical evaluation; (2) that each
individual reports within 2 business days of occurrence, all episodes
of severe hypoglycemia, significant complications, or inability to
manage diabetes; also, any involvement in an accident or any other
adverse event in a CMV or personal vehicle, whether or not it is
related to an episode of hypoglycemia; (3) that each individual provide
a copy of the ophthalmologist's or optometrist's report to the medical
examiner at the time of the annual medical examination; and (4) that
each individual provide a copy of the annual medical certification to
the employer for retention in the driver's qualification file, or keep
a copy in his/her driver's qualification file if he/she is self-
employed. The driver must also have a copy of the certification when
driving, for presentation to a duly authorized

Federal, State, or local enforcement official.

VI. Conclusion

    Based upon its evaluation of the 57 exemption applications, FMCSA
exempts the following drivers from the diabetes requirement in 49 CFR
391.41(b)(10), subject to the requirements cited above 49 CFR
391.64(b)):

David J. Ahlers (MN)
George M. Antonopoulos (MA)
Louis G. Babich (NJ)
Scott R. Bailey (MA)
Michael J. Beaver (MN)
Jason C. Bradley (NY)
Joel P. Brown (PA)
Larry D. Brown (LA)
Garret L. Carter (MO)
Christopher D. Chapman (IA)
Robert J. Chapman (OH)
Steven A. Crain (LA)
Phillip Daquila III (IL)
Robert N. Drake (TX)
Kirk A. Erickson (MN)
Raymond E. Fisher, Jr. (PA)
Richard M. Frostig (CT)
Lawrence M. Gates (NY)
Alva E. Gladney (LA)
John J. Gonzalez (CT)
James M. Haight (NC)
Bradley T. Hall (AL)
William C. Higgins (NC)
David R. Hodge (MI)
James Holman (PA)
Kevin R. Holz (MN)
Jaemin Hwang (NY)
Willis A. Jergenson (IA)
Steven C. Jordan, Jr. (MD)
Craig S. Kozlowski (NY)
Alan D. Kozy (FL)
Duane A. Leazott (MN)
Mark D. Lema (CA)
Robert A. Lewis (PA)
David A. Luchansky (PA)
Jacob T. Marsee (OH)
Richard E. Mellors (NY)
Ronald L. Mills (VA)
Colton J. Nefzger (ND)
Dorian T. Papazikos (AL)
Kurt A. Payne (CA)
Carson A. Penny (CA)
Wayne F. Pohlmeier (NE)
Santos R. Rodriquez, Jr. (NE)
David E. Roth (MN)
Kenneth R. Schleppy (PA)
John J. Shedlock (PA)
Jonathan W. Simoneau (NH)
Kenneth R. Stephenson (TX)
Jeffrey S. Toler (IN)
Herbert L. Turner (FL)
Louis D. Valente (MA)
Robert L. Westergaard (NJ)
Mark A. Williams (IN)
Douglas J. Wood (KY)
Robert A. Yerges (WI)
Kyle S. Yount (KY)

    In accordance with 49 U.S.C. 31136(e) and 31315 each exemption is
valid for two years unless revoked earlier by FMCSA. The exemption will
be revoked if the following occurs: (1) The person fails to comply with
the terms and conditions of the exemption; (2) the exemption has
resulted in a lower level of safety than was maintained before it was
granted; or (3) continuation of the exemption would not be consistent
with the goals and objectives of 49 U.S.C. 31136(e) and 31315. If the
exemption is still effective at the end of the 2-year period, the
person may apply to FMCSA for a renewal under procedures in effect at
that time.

    Issued on: August 17, 2016.
 Larry W. Minor,
 Associate Administrator for Policy.
[FR Doc. 2016-20776 Filed 8-29-16; 8:45 am]
 BILLING CODE 4910-EX-P