[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Notices]
[Pages 71166-71168]
[FR Doc No: 2010-29281]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63316; File No. SR-FINRA-2010-056]

Self-Regulatory Organizations; Financial Industry Regulatory
Authority, Inc.; Notice of Filing of Proposed Rule Change To Adopt
FINRA Rule 1113 (Restriction Pertaining to New Member Applications) and
To Amend the FINRA Rule 9520 Series (Eligibility Proceedings)

November 15, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Exchange Act'' or ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice
is hereby given that on November 1, 2010, Financial Industry Regulatory
Authority, Inc. (``FINRA'') (f/k/a National Association of Securities
Dealers, Inc. (``NASD'')) filed with the Securities and Exchange
Commission (``SEC'' or ``Commission'') the proposed rule change as
described in Items I, II, and III below, which Items have been prepared
by FINRA. The Commission is publishing this notice to solicit comments
on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    FINRA is proposing to adopt new FINRA Rule 1113 (Restriction
Pertaining to New Member Applications) and to amend the FINRA Rule 9520
Series (Eligibility Proceedings) to restrict new member applicants' and
certain members' association with disqualified persons.
    The text of the proposed rule change is available on FINRA's Web
site at http://www.finra.org, at the principal office of FINRA and at
the Commission's Public Reference Room.

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

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

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

1. Purpose
    FINRA is proposing a rule change to adopt new FINRA Rule 1113
(Restriction Pertaining to New Member Applications) and to amend the
FINRA Rule 9520 Series (Eligibility Proceedings) to restrict new member
applicants' and certain members' association with disqualified persons.
The details of the proposed rule change are described below.
Background
    Article III, Section 3(b) of the FINRA By-Laws provides that no
person shall be associated with a member, continue to be associated
with a member, or transfer association to another member if such person
is or becomes subject to disqualification; and that no firm shall be
admitted to membership, and no member shall be continued in membership,
if any person associated with it is subject to a disqualification.
Pursuant to Article III, Section 4 of the FINRA By-Laws, a person is
subject to a ``disqualification'' with respect to membership, or
association with a member, if such person is subject to any ``statutory
disqualification'' as such term is defined in Exchange Act Section
3(a)(39).\3\
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    \3\ See 15 U.S.C. 78c(a)(39). Pursuant to Exchange Act Section
3(a)(39), a person is subject to a ``statutory disqualification''
with respect to membership or participation in, or association with
a member of, a self-regulatory organization (``SRO'') if such
person, among other things: Has been convicted of certain
misdemeanor and all felony criminal convictions for a period of ten
years from the date of the filing of an application for membership
or participation in, or to become associated with a member of, such
SRO; is subject to a temporary or permanent injunction (regardless
of its age) issued by a court of competent jurisdiction involving a
broad range of unlawful investment activities; has been expelled or
suspended from membership or participation in an SRO; or is subject
to an SEC order denying, suspending, or revoking broker-dealer
registration.

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    The FINRA Rule 9520 Series sets forth procedures for a person to
become or remain associated with a member, notwithstanding the
existence of a statutory disqualification, and for a current member or
person associated with a member to obtain relief from the eligibility
or qualification requirements of the FINRA By-Laws and rules. The FINRA
Rule 9520 Series also contemplates that a new member applicant may
sponsor a proposed associated person or itself for relief from the
eligibility or qualification requirements. A member (or new member
applicant) seeking to associate with a person subject to a
disqualification must seek approval from FINRA by filing a Form MC-400
application, pursuant to the FINRA Rule 9520 Series. Members (and new
member applicants) that are themselves subject to a disqualification
that wish to obtain relief from the eligibility requirements are
required to submit a Form MC-400A application.
New Membership Application Rule
    FINRA is proposing to adopt new FINRA Rule 1113 providing that the
Department of Member Regulation (``Department'') shall reject an
application for FINRA membership \4\ in which either the applicant or
an associated person, as defined in Article I of the FINRA By-Laws,\5\
of the applicant is subject to a statutory disqualification, as defined
in Article III, Section 4 of the FINRA By-Laws.\6\ The proposed rule
also provides that any new member application that the Department
approves by virtue of Department or applicant error (including, but not
limited to, an inadvertent or intentional misstatement or omission by
the applicant or associated person) shall be subject to membership
cancellation in accordance with FINRA Rule 9555 (Failure to Meet the
Eligibility or Qualification Standards or Prerequisites for Access to
Services).
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    \4\ Proposed FINRA Rule 1113, by its terms, will not apply to a
member submitting a continuing membership application pursuant to
NASD Rule 1017 (Application for Approval of Change in Ownership,
Control, or Business Operations).
    \5\ Article I of the FINRA By-Laws defines an associated person
as a: (1) A natural person who is registered or has applied for
registration under FINRA rules; (2) a sole proprietor, partner,
officer, director, or branch manager of a member, or other natural
person occupying a similar status or performing similar functions,
or a natural person engaged in the investment banking or securities
business who is directly or indirectly controlling or controlled by
a member, whether or not any such person is registered or exempt
from registration with FINRA under its By-Laws or rules; and (3) for
purposes of FINRA Rule 8210, any other person listed in Schedule A
of Form BD of a member. See FINRA By-Laws, Article I (rr)
(definition of ``person associated with a member'' or ``associated
person of a member'').
    \6\ As previously noted, Article III, Section 4 of the FINRA By-
Laws incorporates the definition of ``statutory disqualification''
as such term is defined in Exchange Act Section 3(a)(39).
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    FINRA believes that a new member applicant should enter the
membership application process free of the concerns and issues that can
arise from either being associated with a disqualified person or being
itself subject to a statutory disqualification. Also, a new member
applicant has no prior operating or supervisory history, and therefore,
would not be able to demonstrate adequately its ability to supervise a
disqualified person.
FINRA Rule 9520 Series Amendments
    FINRA also is proposing several amendments to the FINRA Rule 9520
Series, which, as noted above, set forth the eligibility proceedings.
First, the proposed rule change would amend the FINRA Rule 9520 Series
definition of ``sponsoring member'' \7\ to eliminate the reference to
new member applicants. As stated above, FINRA is concerned about the
ability of new member applicants to supervise adequately a disqualified
person, as such new member applicants generally would not have any
prior operating or supervisory history that would indicate the
necessary experience to supervise disqualified persons. Thus, this
amendment conforms to the proposed new membership application rule
discussed above by precluding new member applicants from being able to
sponsor disqualified persons.\8\
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    \7\ FINRA Rule 9521(b)(4).
    \8\ The proposed rule change also would make conforming
amendments throughout the FINRA Rule 9520 Series to reflect the
proposed amendment discussed above that a new member applicant may
not sponsor a person subject to a disqualification.
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    Second, the proposed rule change would amend the definition of
``disqualified member'' \9\ in the FINRA Rule 9520 Series to clarify
that a new member applicant is not eligible to submit an application
for relief under the FINRA Rule 9520 Series where the new member
applicant itself is subject to a disqualification.
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    \9\ FINRA Rule 9521(b)(2).
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    Lastly, the proposed rule change would further amend the definition
of ``sponsoring member'' to preclude any member from sponsoring the
association or continued association of a disqualified person to be
admitted, readmitted, or permitted to continue in association that is
directly or indirectly a beneficial owner of more than five percent of
the sponsoring member. This proposed change reflects FINRA's belief
that a member cannot effectively supervise such a disqualified person
in light of the inherent conflict of interest resulting from the
ownership interest. In FINRA's experience, a member's decision to
sponsor such a person is nearly always influenced more by that person's
beneficial ownership interest in the firm, rather than by objective
considerations, such as the person's work experience, the length of
time since the disqualifying event, the person's professional
activities since the time of the disqualifying event, or subsequent
lack of disciplinary history.\10\
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    \10\ See The Ass'n of X as a Gen. Secs. Representative,
Chairman, CEO, and owner, Redacted Decision No. SD99013 (NASD NAC
1999) at 9 (the National Adjudicatory Council denied a sponsoring
firm's statutory disqualification application, finding that the
proposed supervisor would not adequately supervise a disqualified
individual who would be 100 percent owner of the firm).
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    FINRA notes that the proposed rule change is not designed to apply
in several situations. Proposed new FINRA Rule 1113 would not apply to
a new member applicant that itself is subject to a statutory
disqualification solely due to its association with a non-natural
person that is subject to a statutory disqualification.\11\ Also, in
such situations, notwithstanding the proposed rule change to the FINRA
Rule 9520 Series that would preclude a new member applicant from
submitting an application for relief under the FINRA Rule 9520 Series,
the new member applicant would be permitted to file an MC-400A
application on behalf of itself.
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    \11\ Exchange Act Section 3(a)(39)(E) subjects a person to a
statutory disqualification if the person is associated with any
person who is known, or in the exercise of reasonable care should be
known, by him to be subject to any statutory disqualification
described in Exchange Act Sections 3(a)(39)(A) through (D). Because
the applicable definition of ``associated person'' (set forth in
Exchange Act Section 3(a)(21)) includes non-natural persons, a
member may find itself subject to a statutory disqualification
solely because it is associated with a person who is subject to a
statutory disqualification pursuant to Exchange Act Section
3(a)(39)(A) through (D). For additional information, see Regulatory
Notice 09-19 (April 2009).
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    Moreover, the proposed amendments to the FINRA Rule 9520 Series
that would preclude any member from sponsoring a disqualified person
that is directly or indirectly a beneficial owner of more than five
percent of the sponsoring member would not preclude a member from
filing an MC-400A application to sponsor itself where needed (e.g., a
member whose majority owner is subject to a 30-day principal suspension
for failure to supervise a books and records violation may seek to
sponsor itself for continued membership rather than having to cease
business for the period of its owner's suspension).
    FINRA will announce the effective date of the proposed rule change
in a

Regulatory Notice to be published no later than 60 days following
Commission approval. The effective date will be no later than 90 days
following publication of the Regulatory Notice announcing Commission
approval.
2. Statutory Basis
    FINRA believes that the proposed rule change is consistent with the
provisions of Section 15A(b)(6) of the Act,\12\ which requires, among
other things, that FINRA rules must be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable
principles of trade, and, in general, to protect investors and the
public interest. The proposed rule change will further these purposes
by restricting certain members and new member applicants from being
able to associate with statutorily disqualified persons in light of the
concerns to investor protection raised by such associations.
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    \12\ 15 U.S.C. 78o-3(b)(6).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    FINRA does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act.

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

    Written comments were neither solicited nor received.

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

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

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change 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 e-mail to<EMAIL_ADDRESS>Please include
File Number SR-FINRA-2010-056 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 Number SR-FINRA-2010-056. This
file number should be included on the subject line if e-mail is used.
To help the Commission process and review your comments more
efficiently, please use only one method. The Commission will post all
comments on the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for Web site
viewing and printing in the Commission's Public Reference Room, 100 F
Street, NE., Washington, DC 20549, on official business days between
the hours of 10 a.m. and 3 p.m. Copies of such filing also will be
available for inspection and copying at the principal office of FINRA.
All comments received will be posted without change; the Commission
does not edit personal identifying information from submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-FINRA-2010-056
and should be submitted on or before December 13, 2010.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-29281 Filed 11-19-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register: September 25, 2009 (Volume 74, Number 185)]
[Notices]
[Page 49067-49068]
[DOCID:fr25se09-157]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

Office of Hazardous Materials Safety; Notice of Application for
Special Permits

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.

ACTION: List of applications for special permits.

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SUMMARY: In accordance with the procedures governing the application
for, and the processing of special permits from the Department of
Transportation's Hazardous Material Regulations (49 CFR part 107,
subpart B), notice is hereby given that the Office of Hazardous
Materials Safety has received the application described herein. Each
mode of transportation for which a particular special permit is
requested is indicated by a number in the ``Nature of Application''
portion of the table below as follows: 1--Motor vehicle, 2--Rail
freight, 3--Cargo vessel, 4--Cargo aircraft only, 5--Passenger-carrying
aircraft.

DATES: Comments must be received on or before October 26, 2009.
    Address Comments To: Record Center, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation,
Washington, DC 20590.
    Comments should refer to the application number and be submitted in
triplicate. If confirmation of receipt of comments is desired, include
a self-addressed stamped postcard showing the special permit number.

FOR FURTHER INFORMATION, CONTACT: Copies of the applications are
available for inspection in the Records Center, East Building, PHH-30,
1200 New Jersey Avenue, SE., Washington DC or at http://
regulations.gov.
    This notice of receipt of applications for special permit is
published in accordance with Part 107 of the Federal hazardous
materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).

    Issued in Washington, DC, on September 11, 2009.
Delmer F. Billings,
Director, Office of Hazardous Materials Special Permits and Approvals.

----------------------------------------------------------------------------------------------------------------
                                                                        Regulation(s)       Nature of special
     Application No.           Docket No.            Applicant            affected           permits thereof
----------------------------------------------------------------------------------------------------------------
                                               NEW SPECIAL PERMITS
----------------------------------------------------------------------------------------------------------------
14895-N.................  ....................  Hubbard-Hall Inc.,   49 CFR 173.158....  To authorize the
                                                 Waterbury, CT.                           manufacture, marking,
                                                                                sale and use of 55-
                                                                                gallon UN 1H1 drums
                                                                                for transportation of
                                                                                up to 70% nitric acid.
                                                                                (mode 1).
14896-N.................  ....................  Department of        49 CFR 172.504 and  To authorize the
                                                 Defense, Scott       172.514.            transportation in
                                                 AFB, IL.                                 commerce of the HEMTT
                                                                                M978 Tanker containing
                                                                                the residue of Class 3
                                                                                fuel oil (less than 5
                                                                                gallons) without
                                                                                placarding when
                                                                                transported by motor
                                                                                vehicle. (mode 1).
14897-N.................  ....................  AMKO Service         49 CFR 173.302a,    To authorize the
                                                 Company, Midvale,    180.205, 180.209    transportation in
                                                 OH.                  180.213.            commerce of certain
                                                                                DOT specification
                                                                                cylinders that have
                                                                                been testing using
                                                                                Acoustic Emission/
                                                                                Ultrasonic Examination
                                                                                every ten years rather
                                                                                than every five years.
                                                                                (modes 1, 2, 3, 4).
14899-N.................  ....................  MGH Management       49 CFR 177.834(h),  To authorize the
                                                 Group, LLC.          178.700.            manufacture, marking,
                                                                                sale and use of 50
                                                                                gallon to 105 gallon
                                                                                refueling tanks
                                                                                containing certain
                                                                                Class 3 liquids which
                                                                                will be discharged
                                                                                without removal from
                                                                                the motor vehicle.
                                                                                (mode 1).
14900-N.................  ....................  BE Aerospace,        49 CFR              To authorize the
                                                 Lenexa, KS.          173.304(f)(3)(ii)   transportation in
                                                                      and (f)(4).         commerce of products
                                                                                containing chemical
                                                                                oxygen generators
                                                                                without an outer
                                                                                packaging that is
                                                                                capable of passing the
                                                                                Flame Penetration and
                                                                                Resistance Test and
                                                                                the Thermal Resistance
                                                                                Test. (mode 4).
----------------------------------------------------------------------------------------------------------------

[FR Doc. E9-22890 Filed 9-24-09; 8:45 am]

BILLING CODE 4909-60-M


[Federal Register: October 9, 2007 (Volume 72, Number 194)]
[Notices]
[Page 57327-57328]
[DOCID:fr09oc07-74]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12847-000]

FFP Project 2, LLC; Notice of Application Accepted for Filing and
Soliciting Comments, Motions To Intervene, and Protests

September 26, 2007.
    Take notice that the following hydroelectric applications have been
filed with the Commission and are available for public inspection:
    a. Type of Application: Preliminary Permit.
    b. Project No.: P-12847-000.
    c. Date Filed: July 25, 2007.
    d. Applicant: FFP Project 2, LLC.
    e. Name of the Project: Harris Bayou Project.
    f. Location: The project would be located on the Mississippi River
in Plaquemines Parish, Louisiana. The project uses no dam or
impoundment.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 91a-825r.
    h. Applicants Contact: Mr. Dan Irvin, FFP Project 2, LLC, 69 Bridge
Street, Manchester, MA 01944, phone<PHONE_NUMBER>.
    i. FERC Contact: Patricia W. Gillis,<PHONE_NUMBER>.
    j. Deadline for filing comments, protests, and motions to
intervene: 60 days from the issuance date of this notice.
    All documents (original and eight copies) should be filed with:
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426. Comments, protests, and interventions may be
filed electronically via the Internet in lieu of paper; see 18 CFR
385.2001(a)(1)(iii) and the instructions on the Commission's Web site
under the ``e-Filing'' link. The Commission strongly encourages
electronic filings. Please include the project number (P-12847-000) on
any comments or motions filed.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency.
    k. Description of Project: The proposed project would consist of:
(1) 2,950 proposed 20 kilowatt Free Flow generating units having a
total installed capacity of 59 megawatts, (2) a proposed transmission
line, and (3) appurtenant facilities. The project would have an average
annual generation of 258.42 gigawatt-hours and be sold to a local
utility.
    l. Location of Application: A copy of the application is available
for inspection and reproduction at the Commission in the Public
Reference Room, located at 888 First Street, NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. For
assistance, call toll-free 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>For TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item h
above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Competing Preliminary Permit--Anyone desiring to file a
competing application for preliminary permit for a proposed project
must submit the competing application itself, or a notice of intent to
file such an application, to the Commission on or before the specified
comment date for the particular application (see 18 CFR 4.36).
Submission of a timely notice of intent allows an interested person to
file the competing preliminary permit application no later than 30 days
after

the specified comment date for the particular application. A competing
preliminary permit application must conform with 18 CFR 4.30 and 4.36.
    o. Competing Development Application--Any qualified development
applicant desiring to file a competing development application must
submit to the Commission, on or before a specified comment date for the
particular application, either a competing development application or a
notice of intent to file such an application. Submission of a timely
notice of intent to file a development application allows an interested
person to file the competing application no later than 120 days after
the specified comment date for the particular application. A competing
license application must conform with 18 CFR 4.30 and 4.36.
    p. Notice of Intent--A notice of intent must specify the exact
name, business address, and telephone number of the prospective
applicant, and must include an unequivocal statement of intent to
submit, if such an application may be filed, either a preliminary
permit application or a development application (specify which type of
application). A notice of intent must be served on the applicant(s)
named in this public notice.
    q. Proposed Scope of Studies Under Permit--A preliminary permit, if
issued, does not authorize construction. The term of the proposed
preliminary permit would be 36 months. The work proposed under the
preliminary permit would include economic analysis, preparation of
preliminary engineering plans, and a study of environmental impacts.
Based on the results of these studies, the Applicant would decide
whether to proceed with the preparation of a development application to
construct and operate the project.
    r. Comments, Protests, or Motions to Intervene--Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper. See 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site at http://www.ferc.gov

under the ``e-Filing'' link.
    s. Filing and Service of Responsive Documents--Any filings must
bear in all capital letters the title ``COMMENTS'', ``NOTICE OF INTENT
TO FILE COMPETING APPLICATION'', ``COMPETING APPLICATION'',
``PROTEST'', and ``MOTION TO INTERVENE'', as applicable, and the
Project Number of the particular application to which the filing
refers. Any of the above-named documents must be filed by providing the
original and the number of copies provided by the Commission's
regulations to: The Secretary, Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC 20426. An additional copy must be
sent to Director, Division of Hydropower Administration and Compliance,
Federal Energy Regulatory Commission, at the above-mentioned address. A
copy of any notice of intent, competing application or motion to
intervene must also be served upon each representative of the Applicant
specified in the particular application.
    t. Agency Comments--Federal, state, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.

Kimberly D. Bose,
Secretary.
 [FR Doc. E7-19778 Filed 10-5-07; 8:45 am]

BILLING CODE 6717-01-P


of the PRIA is available for review in the rulemaking docket.

H. Draft Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321 et seq.),\48\ requires Federal agencies to consider the
environmental impacts of their actions in the decision-making process.
NEPA requires Federal agencies to assess the environmental effects of
proposed Federal actions prior to making decisions and involve the
public in the decision-making process. Agencies must prepare an
environmental assessment (EA) for a proposed action for which a
categorical exclusion is not applicable and is either unlikely to have
significant effects or when significance of the action is unknown. In
accordance with these requirements, an EA must briefly discuss: (1) the
need for the action; (2) the alternatives considered; (3) the
environmental impacts of the proposed action and alternatives; and (4)
a listing of the agencies and persons consulted. If, after reviewing
public comments in response to the draft EA (DEA), an agency determines
that a proposed rule will not have a significant impact on the human or
natural environment, it can conclude the NEPA analysis with a finding
of no significant impact (FONSI).
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    \48\ Also at 40 CFR parts 1501 through 1508.
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1. Need for the Action
    The FAST Act at section 7302 instructs the Secretary to issue
regulations that require a Class I railroad transporting hazardous
material to create accurate, real-time, and electronic train consist
information that must be provided ``to State and local first
responders, emergency response officials, and law enforcement personnel
that are involved in the response to or investigation of an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials.'' Further, the NTSB has issued
safety recommendation R-07-04 recommending PHMSA and FRA collaborate to
require all railroads to immediately provide to emergency response
personnel accurate, real-time information regarding the identity and
location of all hazardous materials on a train.
2. Alternatives Considered
    No Action Alternative:
    The no action alternative would not make any changes to the current
regulatory requirements that railroads must provide train crews with
hard copy train consist information about hazardous material and its
location on the train. There would be no additional requirements for
railroads to generate, maintain, and provide in electronic form,
information regarding hazardous material to first responders, emergency
response officials, and law enforcement personnel or to forward this
information to emergency response personnel in accident or incident
situations.
    Proposed Action: All Railroads Alternative:
    Under this alternative, all railroads that transport hazardous
materials would be required to create accurate train consist
information about the hazardous material and its location on a train in
both a hard (printed) copy maintained by train crews and an electronic
copy maintained by the railroad off-of-the-train and providing it in
real-time through electronic communications to emergency response
personnel. Railroads would also be required to provide a ``push''
notice of the train consist information to emergency response personnel
in (at least) a 10-mile radius of an accident or incident promptly
following notification to the railroad of the accident or incident.
This alternative aims to enhance transportation safety by transitioning
away from exclusive reliance on train crews and hard copy documents for
the exchange of information about hazardous material and their location
on a train.
    Class I Railroads Alternative:
    Under this alternative, only Class I railroads, as defined by the
STB, that transport hazardous materials would be subject to generating
accurate train consist information about the hazardous material and its
location on a train (in both electronic and hard copy forms) and
providing it in real-time through electronic communication, to
emergency response personnel. Also, only Class I railroads would be
required to provide a ``push'' notice of the train consist information
to emergency response personnel in a 10-mile radius of an accident or
incident promptly following notification to the railroad of the
accident or incident. This alternative aims to enhance transportation
safety by transitioning away from exclusive reliance on train crews and
hard copy documents for the exchange of information about hazardous
materials and their locations on a train by adhering more closely to
the FAST Act mandate to implement measures for Class I railroads.
3. Environmental Impacts of Proposed Action and Alternatives
    No Action Alternative:
    The PHMSA HMR and the FRA rail regulations work in tandem to keep
hazardous material in packages and rail cars on the tracks during
transportation. In the unlikely event of an incident or accident, train
crews carry and maintain documentation, in addition to hazard
communication displayed on packages and rail cars, that emergency
responders and law enforcement can use to assess the potential for, or
threat from, a hazardous materials release and thus, appropriately
respond. The intent of the FAST Act mandate and NTSB safety
recommendation to provide real-time electronic means of train consist
information exchange is to provide greater assurances that emergency
responders and law enforcement have the right information about the
hazardous material on a train without delay. The presumption being that
supplementing the existing hard copy train consist information
requirements by providing the information electronically, for instance,
provides better assurance that such information is accurate and in
real-time, especially in the aftermath of a derailment, and that real-
time information will aid in response decision-making, leading to safer
outcomes for the public and the environment. The no action alternative
would not require any updates to the existing requirements or
regulation of hazardous materials transportation and incident response
time.
    Proposed Action: All Railroads Alternative:
    This proposed action would supplement existing requirements for
hard copies of train consist information maintained by train crews by
requiring railroads to also create and provide accurate and real-time
train consist information to emergency response personnel. All
railroads would be required to use electronic

communication to supplement their hard copy documentation and
communications requirements. By implementing the proposed action to all
railroads, the entirety of the nation's rail network would be covered.
Efficiencies will be introduced by requiring accurate and real-time
information exchange with the goal of improved safety and enhanced
response to investigations of an accident or emergency involving
hazardous material transported by rail. The intent of the proposed
action is to foster and promote the general welfare of the human and
natural environment by providing enhanced emergency response and
investigative efforts for safer transport of hazardous materials. The
proposed action builds on the current HMR requirements for hazardous
material information sharing with the goal of improved rail
transportation safety by enhancing emergency responder and law
enforcement ability to assess, without delay, the potential for or
extent of a hazardous material release and take appropriate response
measures. These enhanced safety measures and requirements are geared
toward addressing environmental effects including avoidance of human
exposure and water contamination. Regulations that require the
increased use of electronic systems for transmission of train consist
information not only promote enhanced emergency response and
investigative efforts for accidents or incidents but also respond to
the FAST Act mandate and NTSB safety recommendation R-07-04.
    Class I Railroads Only Alternative:
    This alternative would require only Class I railroads to supplement
existing hard copy train consist information documentation requirements
by creating and providing accurate, real-time train, electronic train
consist information to emergency response personnel and also providing
a ``push'' notice of the train consist information to emergency
response personnel in a 10-mile radius of an accident or incident
promptly following notification to the railroad of the accident or
incident. Although, the entirety of the nation's rail network would not
be covered, applying this alternative would still affect about 68% of
the nation's rail network and most of the hazardous materials freight
traffic. Class I railroads operate on about 90,000 miles of the
140,000-mile U.S. freight rail network. This modified version of the
proposal would still provide safety and environmental benefits by
enhancing emergency responder and law enforcement ability to assess
without delay the potential for a hazardous material release and take
appropriate response measures. Similar to the proposed action to all
railroads, this approach also builds on the HMR provisions for
hazardous material information sharing, just to a narrower extent,
applicable to only Class I railroads. The enhanced safety measures and
requirements are geared toward addressing environmental effects
including avoidance of human exposure and water contamination.
4. Environmental Justice
    Executive Order 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations''),\49\
directs Federal agencies to take appropriate and necessary steps to
identify and address disproportionately high and adverse effects of
Federal actions on the health or environment of minority and low-income
populations to the greatest extent practicable and permitted by law.
DOT Order 5610.2C (``U.S. Department of Transportation Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'') establishes departmental procedures for effectuating
Executive Order 12898 promoting the principles of environmental justice
through full consideration of environmental justice principles
throughout planning and decision-making processes in the development of
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------

    \49\ 59 FR 7629 (Feb. 11, 1994).
---------------------------------------------------------------------------

    Through the NEPA process, PHMSA has evaluated this NPRM under DOT
Order 5610.2C and Executive Order 12898 and has preliminarily
determined it will not cause disproportionately high and adverse human
health and environmental effects on minority and low-income
populations. The proposed rule will not result in any adverse
environmental or health impact on minority populations and low-income
populations. Rather, PHMSA anticipates the proposed action to have a
positive impact on the safe transportation of hazardous materials by
rail by requiring all trains transporting hazardous materials to have
real-time information available to emergency responders in the event of
an accident or incident--particularly rail lines in urban or rural
areas posing higher risks due to their proximity to minority and low-
income communities in the vicinity of those rail lines. To the extent
that the nation's rail network passes through geographic locations of
minority populations, low-income populations, or other underserved and
other disadvantaged communities, and in the unfortunate circumstance of
a rail accident or emergency involving hazardous materials, the
proposed action will have a positive impact by aiding emergency
response personnel and law enforcement in more quickly assessing
potential threats from the hazardous materials and taking appropriate
measures to protect public health and the environment. Lastly, as
explained in this DEA above, the proposed action will likely reduce
environmental risks posed by hazardous material rail incidents.
5. Agencies and Persons Consulted
    PHMSA published this notice in consultation with FRA. In addition,
PHMSA and FRA worked with stakeholders through several RSAC Hazardous
Material Issues Working Group meetings. The U.S. Department of Homeland
Security, NTSB, and a variety of rail industry stakeholders, such as
the AAR and the IIAFC participated in these meetings. Ultimately, some
participants in the Working Group concluded that electronic train
consist information could be a valuable option for improving emergency
response efforts, and the AskRail[supreg] system could be extended
beyond Class I railroads. PHMSA also issued an ANPRM soliciting
stakeholder input on the contents of this rulemaking. Please see
Section III. G above for more details.
6. Draft Finding of No Significant Impact
    As discussed in the DEA above and given that the purpose of the
rule is to address safety and environmental impacts of potential future
hazardous materials rail transportation incidents, PHMSA proposes to
find that this proposed action will have no significant impact on the
environment. This is based on the analysis presented in the ANPRM,
NPRM, supporting documents, and this DEA. PHMSA welcomes public
comments about the safety and environmental risks or benefits that
could result from this proposed rule as well as possible alternatives
and their environmental impacts.

I. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform any amendments to the HMR considered in this
rulemaking. 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). DOT's
complete Privacy Act Statement is available in the Federal

Register,\50\ or on DOT's website at http://www.dot.gov/privacy.
---------------------------------------------------------------------------

    \50\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------

J. Executive Order 13609 and International Trade Analysis

    Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \51\ requires that agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------

    \51\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------

    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465) (as
amended, the Trade Agreements Act), prohibits agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to the Trade Agreements Act, the establishment of
standards is not considered an unnecessary obstacle to the foreign
commerce of the United States, so long as the standards have a
legitimate domestic objective, such as providing for safety, and do not
operate to exclude imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards
to protect the safety of the American public, and it has assessed the
effects of the proposed action to ensure that it does not cause
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is
consistent with Executive Order 13609 and PHMSA's obligations under the
Trade Agreements Act.

K. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (NTTAA) of
1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary
consensus standards in their regulatory activities unless doing so
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards--e.g.,
specification of materials, test methods, or performance requirements--
that are developed or adopted by voluntary consensus standard bodies.
This rulemaking does not propose use of voluntary consensus standards,
and therefore the NTTAA does not apply.

L. Cybersecurity and Executive Order 14082

    Executive Order 14082 (``Improving the Nation's Cybersecurity'')
\52\ expressed the Administration policy that ``the prevention,
detection, assessment, and remediation of cyber incidents is a top
priority and essential to national and economic security.'' Executive
Order 14082 directed the Federal Government to improve its efforts to
identify, deter, and respond to ``persistent and increasingly
sophisticated malicious cyber campaigns.'' Consistent with Executive
Order 14082, TSA in October 2022 issued a Security Directive to reduce
the risk that cybersecurity threats pose to critical railroad
operations and facilities through implementation of layered
cybersecurity measures that provide defense in depth.\53\
---------------------------------------------------------------------------

    \52\ 86 FR 26633 (May 17, 2021).
    \53\ TSA, Security Directive No. 1580/82-2022-01, ``Rail
Cybersecurity Mitigation Actions and Testing'' (Oct. 24, 2022).
---------------------------------------------------------------------------

    PHMSA has considered the effects of the NPRM and has preliminarily
determined that its proposed regulatory amendments would not materially
affect the cybersecurity risk profile for rail transportation of
hazardous materials. PHMSA acknowledges that the proposed requirements
within this NPRM pertaining to the sharing of electronic train consist
information (some of which may be proprietary or security-sensitive
information) could have some effect on the cybersecurity risk profile
of rail transportation of hazardous material. However, PHMSA notes that
it has proposed in this NPRM (consistent with a mandate in section
7302(a)(5) of the FAST Act) explicit language at Sec.  174.28(c) that
would require such information sharing be performed in a manner that is
protective of security and confidentiality interests. PHMSA also notes,
that, as explained in the discussion of Sec.  174.28 within Sections
III.F-G. above, railroads that would be affected by this NPRM's
proposals may be participants in existing industry cybersecurity risk-
mitigation initiatives, or subject to recent TSA guidance for
mitigation of cybersecurity risks associated with rail transportation
of hazardous material. PHMSA understands these considerations address
any potential alteration in cybersecurity risks profiles due to this
NPRM's proposed information-sharing requirements.
    PHMSA seeks comment on any other potential cybersecurity impacts of
the proposed amendments beyond the considerations discussed here.

M. Severability

    The purpose of this proposed rule is to operate holistically in
addressing different issues related to safety and environmental hazards
associated with the rail transportation of hazardous materials.
However, PHMSA recognizes that certain provisions focus on unique
topics. Therefore, PHMSA preliminarily finds that the various
provisions of this proposed rule are severable and able to function
independently if severed from each other; thus, in the event a court
were to invalidate one or more of this proposed rule's unique
provisions, the remaining provisions should stand and continue in
effect. PHMSA seeks comment on which portions of this rulemaking should
or should not be severable.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.

49 CFR Part 174

    Emergency preparedness, Hazardous materials transportation,
Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 180

    Hazardous materials transportation, Motor carriers, Motor vehicle
safety, Packaging and containers, Reporting and recordkeeping
requirements.

    In consideration of the foregoing, PHMSA proposes to amend 49 CFR
chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.

0
2. In Sec.  171.8, remove the definition for ``Train consist'' and add
the definition for ``Train consist information'' in alphabetical order
to read as follows:

Sec.  171.8  Definitions.

* * * * *
    Train consist information means a hard (printed) copy or electronic
record of the position and contents of each hazardous material rail car
where the record includes the information required by Sec.  174.26 of
this subchapter.
* * * * *

PART 174--CARRIAGE BY RAIL

0
3. The authority citation for part 174 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and
1.97.

0
4. Revise Sec.  174.26 to read as follows:

Sec.  174.26  Notice to train crews.

    (a) Prior to movement of a train, a railroad must provide the train
crew with train consist information as defined in Sec.  171.8 of this
subchapter in hard copy (printed) form that has: a railroad-designated
emergency point of contact (name, title, phone number and email
address) in a conspicuous location; and the position in the train and
contents of each hazardous material rail car by reporting mark and
number, to include the:
    (1) Point of origin and destination of hazardous materials subject
to shipping paper requirements on the train;
    (2) Shipping paper information required by Sec. Sec.  172.201 to
172.203 of this subchapter; and
    (3) Emergency response information required by Sec.  172.602(a) of
this subchapter.
    (b) The train crew must update the train consist information to
reflect any changes in the train consist information occurring at
intermediate stops prior to continued movement of the train. Any update
to the train consist information must also be reflected in the
electronic train consist information required pursuant to Sec.  174.28
prior to continued movement of the train. Train crews may use
electronic or radio communications to notify the railroad to update the
electronic train consist information.
    (c) The train consist information must always be immediately
available for use by the train crew while the train is in
transportation. When the train crew is aboard the train locomotive, the
train consist information shall be stowed in a conspicuous location of
the occupied locomotive.
    (d) Railroad operating rules for use of electronic devices by train
crews and use of electronic devices by train crews in association with
updates to train consist information requirements of this section and
Sec.  174.28 must comply with 49 CFR part 220, subpart C.
0
5. Add Sec.  174.28 to read as follows:

Sec.  174.28  Electronic Train Consist Information.

    (a) Retention and notification requirements. Each railroad carrying
hazardous materials must at all times maintain in electronic form, off
the train, accurate train consist information as required in Sec.
174.26. Each railroad must make such electronic train consist
information immediately accessible at all times to its designated
emergency point of contact such that they are able to communicate train
consist information to Federal, state, and local first responders,
emergency response officials, and law enforcement personnel seeking
assistance. Each railroad must also provide, using electronic
communication (e.g., a software application or electronic data
interchange), that electronic train consist information to authorized
Federal, state, and local first responders, emergency response
officials, and law enforcement personnel along the train route that
could be or are involved in the response to, or investigation of, an
accident, incident, or public health or safety emergency involving the
rail transportation of hazardous materials such that the information is
immediately available for use at the time it is needed.
    (b) Emergency notification. When a train carrying hazardous
material is involved in either an accident, or in an incident involving
the release or suspected release of a hazardous material from a rail
car in the train, the railroad must promptly notify State-authorized
local first responders within at least a 10-mile radius of the accident
or incident by forwarding train consist information in electronic form
to those personnel. Notification may be accomplished through Public
Safety Answering Points (i.e., 911 call centers).
    (c) Security measures. Each railroad must implement security and
confidentiality protections in generating, updating, providing, and
forwarding train consist information in electronic form pursuant to
this section to ensure they provide access only to authorized persons.
Nothing in this paragraph shall limit a railroad from entering into
agreements with other railroads or persons to develop and implement a
secure process for the generation, updating, providing, and forwarding
of that information.
    (d) Provision of train consist information. No railroad may
withhold, or cause to be withheld, the train consist information
described in paragraphs (a) and (b) of this section from Federal,
state, or local first responders, emergency response officials, and law
enforcement personnel in the event of an incident, accident, or public
health or safety emergency involving the rail transportation of
hazardous materials. If a railroad uses a software application to meet
the requirements of this section, it must provide all first responders,
emergency response officials, and law enforcement personnel responding
to, or investigating, an accident, incident, or public health or safety
emergency involving the rail transportation of hazardous materials
access, in accordance with the security and confidentiality protections
required in paragraph (c) of this section, to the train consist
information contained within that application without delay for the
duration of the response or investigation.

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

0
6. The authority citation for part 180 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

0
7. In Sec.  180.503, remove the definition ``Train consist''.

    Issued in Washington, DC on June 21, 2023 under authority
delegated in 49 CFR part 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2023-13467 Filed 6-26-23; 8:45 am]
BILLING CODE 4910-60-P


1 Date: August 22, 2003 Subject: Meeting Summary  EPA and representatives from the taconite industry From: Chris Sarsony, Alpha Gamma Technologies, Inc.

To: Docket OAR 2002 0039 I. Purpose The primary purpose of the meeting was to discuss the following issues with representatives of the taconite industry:

° the industry de listing petition and the petition process, ° the potential use of risk based approaches, ° the economic impact of the proposed rule, and ° technical comments on the proposed rule.

II. Date March 18, 2003 III. Attendees U. S. Environmental Protection Agency Steve Fruh, OAQPS/ ESD/ MG Conrad Chin, OAQPS/ ESD/ MG Kelly Rimer, OAQPS/ ESD/ REAG Dave Guinnup, OAQPS/ ESD/ REAG Alex Schmandt, OGC Taconite industry representatives Don Ahola, Empire Mining John Meier, Cleveland Cliffs Brad Anderson, EVTAC Rhonda Ross, Warner Norcross & Judd Dave Crouch, Cleveland Cliffs Larry Salmela, U. S. Steel Mr. Bill Kubiak  U. S. Steel Dave Skolasinski, Northshore Mining LaTisha Gietzen, National Steel Andrea Hayden, Hibbing Taconite Alpha Gamma Technologies, Inc.

Chris Sarsony OAR 2002 0039 IV E 12 2 IV. Discussion De listing Petition and the Petition Process:

° At industry's request the EPA explained the time line for de listing proposals and provided an update of the status of other de listing petitions.

° EPA stressed that the taconite NESHAP has a court ordered promulgation deadline of August of 2003. Therefore, the de listing petition will not affect the promulgation date.

° Taconite industry representatives indicated that they will submit a de listing petition to EPA by the end of June 2003.

Potential use of risk based approaches:

° Industry representatives provided additional detail regarding their public comments on:

° Subjecting the source category to one of the more innovative risk based approaches as was done in the Brick and Structural Clay Products and Clay Ceramics NESHAP and several other rulemakings.

° Splitting the category into indurating sources and non indurating sources as was done in the Brick and Structural Clay Products and Clay Ceramics NESHAP. Then they proposed de listing the non indurating sources.

° EPA explained that the Brick and Structural Clay Products and Clay Ceramics NESHAP split out plants that were making completely different types of products. They did not split out certain steps of a continuous process, as the taconite industry is suggesting.

Economic Impact of the Proposed Rule:

° Industry stated that, as explained in their written comments, the proposed rule will have a significant impact on the taconite industry.

° The EPA asked if the industry could provide updated cost impacts for each plant. The industry representatives agreed that they could provide the cost information in the next 2 to 3 weeks.

Technical Comments on the Proposed Rule:

° Industry representatives highlighted some of the technical concerns that were included in their written public comments. These included: ° continuous monitoring requirements, ° simultaneous testing of indurating furnace stacks, ° pressure drop is hard to control for some emission control devices, such as venturi rod scrubbers and dynamic wet scrubbers, ° excluding pellet cooler stacks and pellet galleries from the definition of finished pellet handling,

° Minntac agreed to contact the venturi rod manufacturer regarding maintaining a constant pressure drop. They will also look at the pressure drop readings from their historical emissions tests.