("APA") requires the EPA to provide notice of a proposed rulemaking
"adequate to afford interested parties a reasonable opportunity to
participate in the rulemaking process." Florida Power & Light Co. v.
United States, 846 F.2d 765, 771 (D.C.Cir. 1988); SENATE JUDICIARY
COMMITTEE, ADMINISTRATIVE PROCEDURE ACT, S. REP., No. 752, 77th Cong.,
1st Sess. 14 (1945) ("Agency notice must be sufficient to fairly apprise
interested parties of the issues involved, so that they may present
responsive data or argument relating thereto."). This requirement serves
both (1) "to reintroduce public participation and fairness to affected
parties after governmental authority has been delegated to
unrepresentative agencies"; and (2) to assure that the "agency will have
before it the facts and information relevant to a particular
administrative problem." National Ass'n of Home Health Agencies v.
Schweiker, 690 F.2d 932, 949 (D.C. Cir. 1982); see also, MCI
Telecommunications Corp. v. FCC, 57 F.3d 1136, 1141 (D.C. Cir. 1995)
(same). The Proposal does not provide potentially affected parties with
sufficient opportunity to understand and respond to the data and highly
technical modeling utilized by EPA and, thus, does not satisfy the
notice and comment requirements of the APA.

The Proposal does not provide affected source with sufficient notice and
opportunity to comment. The Proposal is just eight pages long and does
not have its own technical support documents. EPA directs sources to the
preamble and the technical support documents associated with CSAPR See
76 Fed. Reg. at 40,666. Sources affected by the Proposal do not have a
similar short-cut available for parsing through the relevant information
and developing responsive data and arguments. CSAPR covers 27 states and
establishes four different trading programs. The amount of information
underlying the rule is voluminous. The CSAPR preamble is 146 pages long
and has over 147 technical support documents. EPA has made no effort to
organize the CSAPR materials in a way that clearly identifies
information relevant to the Proposal. Additionally, the Proposal itself
lacks any meaningful explanation of EPA's significant contribution
analyses, state emissions budget determination, or allowance allocation
calculation. EPA's cursory treatment of the Proposal undermines "the
values of public participation, fairness, and informed agency decision
making that the notice-and-comment process is designed to foster." City
of Idaho Falls v. FERC, 629 F.3d 222,229 (D.C. Cir. 2011).

The comment period for the Proposal is too short for affected sources
and states to verify the accuracy of the data and analyses relied on by
EPA. To develop meaningful comments on the Proposal, affected sources
faced the daunting tasks of (1) locating and verifying the data EPA
attributes to their EGUs; (2) understanding the complicated methodology
used by EPA to determine unit-specific emissions allowances; (3)
determining whether EPA correctly calculated the number of allowances to
be allocated to their EGUs; (4) understanding the complicated
methodology used by EPA to calculate state emissions budgets; (5)
locating all the relevant information for EGUs in the state of interest
and determining whether EPA correctly calculated the state emissions
budget; and (6) understanding the highly technical model used by EPA to
determine that the state of interest significantly contributes to
downwind pollution. Even with the assistance of expert consultants, it
is impossible to complete all analyses necessary to fully address the
Proposal in the 43-day comment period.

EPA's failure to provide a reasonable comment period is inconsistent
with Executive Order 13563. The order requires EPA to "afford the public
a meaningful opportunity to comment" on proposed rules, "with a comment
period that should generally be at least 60 days." 7'6 Fed. Reg. 3,821
(Jan. 21, 2011). EPA has had nearly three years since the decision in
North Carolina to develop the Proposal. It expects the general- public
and affected sources, which are far less equipped than EPA to conduct
technical analyses and air quality modeling, to develop comments in just
43 days. Given the scope of the technical analysis required, that
timeframe is clearly insufficient and not in accordance with the mandate
of Executive Order 13563 to allow for meaningful public comment.
[Western Farmers Electric Cooperative (EPA-HQ-OAR-2009-0491-4589), p.
12-13.]

Comment:  EPA set a 30-day comment period ending August 22, 2011.
Despite EPA's efforts to post everything related to this rule on the EPA
website, key decisions and assumptions made in the rulemaking,
particularly changes from proposed to final, have not been readily
accessible. Although the emissions data are available in the docket, the
modeling input and output files are not. As late as a month after
signing the rule, information is still being posted to the website. The
technical and supporting documentation for the final and proposed rules
is over 132,000 pages. Parsing how and why Kansas fits into the proposed
rule has been an extremely difficult task for KDHE staff. In the
proposed rule, Kansas is linked only to maintenance of the ozone
standard in Allegan County, Michigan. The proposed rule is the first
opportunity for KDHE to review the technical information supporting
Kansas' significant contribution to Allegan County. A complete analysis
of these data will take more time than the current comment period
allows. KDHE requests an extension of time to file a more complete set
of comments from the currently set date of August 22, 2011 to October 1,
2011.  [Kansas Department of Health & Environment
(EPA-HQ-OAR-2009-0491-4582), p. 1-2.]

RESPONSE:  EPA disagrees with the commenters for the following reasons.
Section 307(d)(5) of the CAA requires the Administrator to give an
opportunity for written or oral comments.  The Act does not specify the
length of time, other than the record must be open 30 days after holding
public hearings - with which EPA has complied.  There was no request
for a public hearing on the Supplemental Notice of Proposed Rulemaking
(SNPR).

EPA posted the signed version of the Proposed Transport Rule to the web
when it was signed on July 6, 2010.  The proposal was published in the
Federal Register on August 2, 2010, and the public comment period closed
on October 1, 2010.  This provided a 60 day comment period (and also
provided 90 days of public notice from the date posted to the web).

EPA posted the signed version of the first Transport Rule Notice of Data
Availability (NODA) addressing its power sector model (IPM) to the web
when it was signed on August 25, 2010.  The first NODA was published in
the Federal Register on September 1, 2010, and the public comment period
closed on October 15, 2010.  This provided a 45 day comment period (or
52 days from the date posted to the web).  EPA posted the signed
version of the second Transport Rule NODA (addressing emissions
inventories) to the web when it was published in the Federal Register on
October 27, 2010.  The public comment period closed on November 26,
2010, which provided a 30 day comment period.  EPA posted the signed
version of the third Transport Rule NODA (allocations and related
matters) to the web when it was signed on December 30, 2010.  The third
NODA was published in the Federal Register on January 7, 2011.  The
public comment period closed on February 7, 2011, which provided a 30
day comment period (or 38 days from the date posted to the web).  EPA
posted the signed version of the Supplemental Notice of Proposed
Rulemaking to the web when it was signed on July 6, 2011.  The SNPR was
published in the Federal Register on July 11, 2011.  The public comment
period closed on August 22, 2011, which provided a 6 week comment period
from publication in the Federal Register (and 47 days from availability
of the proposal on the web).

Given the timeframe EPA provided to the public for submission of
comments, and indicative of the fact that the Agency received several
thousand substantive comments, commenters did, in fact, have a
reasonable opportunity to submit their comments for consideration.

Commenter states broadly that for all of the various reasons in the
comments, EPA has acted arbitrarily and capriciously in the rulemaking
as it affects Oklahoma.

Comment:   While DEQ is in support of reducing NOX emissions in
Oklahoma, it is our belief that the implementation of this rule in this
manner undermines the credibility of the EPA and that this particular
rulemaking has crossed the line between prudent rulemaking and practices
that can only be characterized as arbitrary and capricious. We believe
that the best way forward would be for the EPA to remove the State of
Oklahoma from the states included in the CSAPR.

DEQ wishes to express its support for emission reductions in the state
of Oklahoma. Unfortunately, it appears that compliance with the heavily
reduced emission budget and the tight timeline will be extremely
difficult, if not impossible for Oklahoma utilities. EPA has acted in a
manner that is arbitrary and capricious in: (1) changing the methodology
used to set state allowance budgets without allowing public comment, (2)
failing to make those procedures clear and unambiguous in a timely
manner, and (3) delaying the final rulemaking which will set state
ozone-season budgets for the six states (including Oklahoma) covered by
the Supplemental Notice of Proposed Rulemaking (SNPR). This is
particularly burdensome for utilities operating units located in the
state of Oklahoma. In fact, Oklahoma is the only state covered by the
SNPR that has no requirements whatsoever in the CSAPR as finalized on
August 8, 2011. EPA’s actions have jeopardized the market-based
benefits of the rule by failing to issue clear and unambiguous signals
regarding the allowances that will be allocated on a unit-by-unit basis
and by holding the potentially subject units hostage to another proposed
rulemaking. As of the date these comments were prepared (August 22,
2011), utilities operating units located in Oklahoma do not know whether
those units will be subject to the rule at all and, if they are subject,
how many allowances each unit will be issued for the 2012 ozone season
beginning in May of that year.

After the issuance of the proposed rule in 2010, many Oklahoma utilities
pointed out inconsistencies in the IPM assumptions and problems with
specific allocations, but, in general, the utilities expected to be able
to comply with the rule. All of these assumptions were upended this
summer and, based on the changes between 2010 and 2011, it would be
imprudent for the utilities to assume consistency between the SNPR and
whatever will be included in the rule when it is finalized this fall. We
believe that the best way to remedy these problems would be for the EPA
to remove the State of Oklahoma from this version of the CSAPR
altogether. We acknowledge that we may well need to be included in a
future extension of CSAPR in a future rulemaking. If and when that
occurs, it is essential that EPA provide sufficient time between the
publication of the final rule and the beginning of the compliance period
to allow utilities operating subject units to adapt to the new
requirements. By failing to provide that time, EPA undercuts its
credibility and makes it more difficult for states to defend rules
which, if implemented properly, would provide substantial benefits to
our citizens.

DEQ respectfully requests that EPA exclude Oklahoma from the rule
altogether, but requests that at the very least, EPA increase the state
ozone-season NOX allowance budget by 1,500 tons and that the compliance
date for units operating in Oklahoma be pushed back to the 2015 ozone
season.  [Oklahoma Department of Environmental Quality
(EPA-HQ-OAR-2009-0491-4593), p. 5-7.]

RESPONSE:  EPA disagrees with the commenter for the following reasons.
Section 307(d)(5) of the CAA requires the Administrator to give an
opportunity for written or oral comments.  The Act does not specify the
length of time, other than the record must be open 30 days after holding
public hearings - with which EPA has complied.  There was no request
for a public hearing on the Supplemental Notice of Proposed Rulemaking
(SNPR).

EPA posted the signed version of the Proposed Transport Rule to the web
when it was signed on July 6, 2010.  The proposal was published in the
Federal Register on August 2, 2010, and the public comment period closed
on October 1, 2010.  This provided a 60 day comment period (and also
provided 90 days of public notice from the date posted to the web).

EPA posted the signed version of the first Transport Rule Notice of Data
Availability (NODA) addressing its power sector model (IPM) to the web
when it was signed on August 25, 2010.  The first NODA was published in
the Federal Register on September 1, 2010, and the public comment period
closed on October 15, 2010.  This provided a 45 day comment period (or
52 days from the date posted to the web).  EPA posted the signed
version of the second Transport Rule NODA (addressing emissions
inventories) to the web when it was published in the Federal Register on
October 27, 2010.  The public comment period closed on November 26,
2010, which provided a 30 day comment period.  EPA posted the signed
version of the third Transport Rule NODA (allocations and related
matters) to the web when it was signed on December 30, 2010.  The third
NODA was published in the Federal Register on January 7, 2011.  The
public comment period closed on February 7, 2011, which provided a 30
day comment period (or 38 days from the date posted to the web).  EPA
posted the signed version of the Supplemental Notice of Proposed
Rulemaking to the web when it was signed on July 6, 2011.  The SNPR was
published in the Federal Register on July 11, 2011.  The public comment
period closed on August 22, 2011, which provided a 6 week comment period
from publication in the Federal Register (and 47 days from availability
of the proposal on the web).

Given the timeframe EPA provided to the public for submission of
comments, and indicative of the fact that the Agency received several
thousand substantive comments, commenters did, in fact, have a
reasonable opportunity to submit their comments for consideration.

See section III.B.iv of the preamble to this final rule regarding the
Oklahoma budget.  EPA has considered the comment concerns with respect
to the compliance schedule.   In the final rule, EPA is setting the
Oklahoma 2012 ozone season NOX budget at a level that reflects emission
reductions achievable through actions (such as changes in generation
unit dispatch) that do not include additional LNB installations.  EPA is
setting the Oklahoma ozone season NOX budget for 2013 and beyond at the
level that was proposed, i.e., to reflect NOX levels achievable with
additional LNB installations that can be completed before the 2013 ozone
season without necessitating the shutdown of units during the summer
peak demand period in 2012.

 (C) EPA’s refusal to consider data is improper.

Comment:   EPA’s supplemental notice of proposed rulemaking seeks to
limit the scope of public input, nothing that:

EPA is not taking comment on any aspect of the final Transport Rule,
including any aspect of the methodology used to identify receptors for
nonattainment; the methodology used to identify receptors for
maintenance; the methodology used to identify any specific state’s
significant contribution and interference with maintenance; the
methodologies used to establish state budgets, variability limits, and
state assurance levels; or the methodologies used to allocate allowances
to existing units, to establish new unit set-asides and Indian country
new unit set-asides, or to allocate allowances in these set-asides.

EPA’s refusal to take comment on these issues is premised on its
theory that “EPA provided an adequate opportunity for public comment
on all of these issues during the comment period for the proposed
Transport Rule and during the comment periods for the associated Notices
of Data Availability.” MEC respectfully disagrees that EPA has
provided an adequate opportunity for public comment on the issue of the
methodology used to identify receptors for maintenance. EPA’s previous
proposal to include “all six states in at least one of the Transport
Rule trading programs” does not (and in this case, cannot) mean that
entities impacted by this supplemental notice had the same opportunity
to review the potential impacts at a receptor that EPA itself admits was
not identified or included in the July 6, 2010, proposed rule.
[MidAmerican Energy Company (EPA-HQ-OAR-2009-0491-4597), p. 2.]

RESPONSE:  EPA disagrees with the commenter for the following reasons.
Section 307(d)(5) of the CAA requires the Administrator to give an
opportunity for written or oral comments.  The Act does not specify the
length of time, other than the record must be open 30 days after holding
public hearings - with which EPA has complied.  There was no request
for a public hearing on the Supplemental Notice of Proposed Rulemaking
(SNPR).

EPA posted the signed version of the Proposed Transport Rule to the web
when it was signed on July 6, 2010.  The proposal was published in the
Federal Register on August 2, 2010, and the public comment period closed
on October 1, 2010.  This provided a 60 day comment period (and also
provided 90 days of public notice from the date posted to the web).

EPA posted the signed version of the first Transport Rule Notice of Data
Availability (NODA) addressing its power sector model (IPM) to the web
when it was signed on August 25, 2010.  The first NODA was published in
the Federal Register on September 1, 2010, and the public comment period
closed on October 15, 2010.  This provided a 45 day comment period (or
52 days from the date posted to the web).  EPA posted the signed
version of the second Transport Rule NODA (addressing emissions
inventories) to the web when it was published in the Federal Register on
October 27, 2010.  The public comment period closed on November 26,
2010, which provided a 30 day comment period.  EPA posted the signed
version of the third Transport Rule NODA (allocations and related
matters) to the web when it was signed on December 30, 2010.  The third
NODA was published in the Federal Register on January 7, 2011.  The
public comment period closed on February 7, 2011, which provided a 30
day comment period (or 38 days from the date posted to the web).  EPA
posted the signed version of the Supplemental Notice of Proposed
Rulemaking to the web when it was signed on July 6, 2011.  The SNPR was
published in the Federal Register on July 11, 2011.  The public comment
period closed on August 22, 2011, which provided a 6 week comment period
from publication in the Federal Register (and 47 days from availability
of the proposal on the web).

Given the timeframe EPA provided to the public for submission of
comments, and indicative of the fact that the Agency received several
thousand substantive comments, commenters did, in fact, have a
reasonable opportunity to submit their comments for consideration.

6.  Out of Scope Comments

Significant Contribution Methods

Commenter requests additional clarification on the data used to
determine that Oklahoma is a significant contributor to downwind ozone
nonattainment.

How were the wind patterns developed?  For example, there are numerous
monitoring locations between Oklahoma and Michigan (including large
metropolitan areas such as Kansas City and St. Louis).  None of these
monitors showed a significant contribution from Oklahoma.  [Oklahoma
Municipal Power Authority (OMPA) (EPA-HQ-OAR-2009-0491-4573), p. 2.]

RESPONSE:  The model meteorological estimates from MM-5 used as inputs
for CAMx are described in EPA-HQ-OAR-2009-0491-4140, the "Air Quality
Modeling Final Rule Technical Support Document."  Furthermore, examining
the state-by-state ozone contribution estimates from the 2012 base case
air quality modeling for the final rule, Oklahoma clearly contributes at
or above the 1% contribution threshold to a number of monitor-receptors
in downwind states (e.g., Texas, Missouri, Indiana, Illinois, and
Michigan) (see the “Contributions of 8-hour ozone, annual PM2.5, and
24-hour PM2.5 from each state to each monitoring site” excel workbook
accessible on the EPA transport rule website for the contributions.
This is part of EPA-HQ-OAR-2009-0491-4228 in the docket to this rule).
However, with the exception of the Allegan, Michigan receptor, these
monitors were modeled not to have nonattainment and/or maintenance
issues.  Thus, they were not further used to examine significant
contribution and/or interference with maintenance in the Transport Rule.

Comment:  Have there been any third party evaluations of the results of
the CAMx model?  The results of this model will subject the State of
Oklahoma, cities within the state, and businesses to numerous
requirements costing billions of dollars.  The results of this model
need to be verified.  [Oklahoma Municipal Power Authority (OMPA)
(EPA-HQ-OAR-2009-0491-4573), p. 2.]

RESPONSE:  There have been a number of third party evaluations of CAMx
model predictions.  Several of these are listed below.  Additional
information on the development and use of CAMx can be found on the web
site:   HYPERLINK "http://www.camx.com"  www.camx.com .

(1) Tesche, T. W.; Morris, R.; Tonnesen, G.; McNally, D.; Boylan, J.;
Brewer, P.,

CMAQ/CAMx annual 2002 performance evaluation over the eastern US.
Atmospheric

Environment 2006, 40(26), 4906-4919.

(2) Hogrefe, G., Civeroio, K.L., Hao, W., Ku, J-Y., Zalewsky, E.E., and
Sistla, G., Rethinking the Assessment of Photochemical Modeling Systems
in Air Quality Planning Applications. Air & Waste Management Assoc.,
58:1086-1099, 2008.

(3) Implementation of State-of-Science PM Modules into the PMCAMx
Photochemical Grid Model.R.E. Morris, G. Yarwood, C. Emery, Spyros
Pandis, and F. Lurmann. Presented at the 96th Annual Conference and
Exhibition of the A&WMA, San Diego, California (June 2003).

(4) Arunachalam, S. Peer Review of Source Apportionment Tools in CAMx
and CMAQ, EP-D-07-102. University of North Carolina, Institute for the
Environment, August 2009.

Budget/Variability/Assurance Methods

No comments received on this issue.

Allocation Methods

No comments received on this issue.

Emission Inventories

Commenter asserts that the types of sources affected by the SNPR should
be expanded so that the burden of precursor emissions reduction is more
widely shared.

The Midwest has numerous Title V stationary sources that rely on
coal-generated heat for process boilers. Notable among these are grain
handling and processing facilities, of which there are several in Iowa.
For Iowa and other Midwestern states, the focus on fossil fuel-fired
energy facilities is too narrow. One major source, a value-added grain
products facility, is proposing to increase the stack height of a main
stack in order to solve local problems. However, the NOX and volatile
organics from this source will continue to blow downwind, barring
upgrades to NOX controls under other rules and the current SIP call for
Muscatine.  [Iowa Environmental Council (EPA-HQ-OAR-2009-0491-4572), p.
2.]

RESPONSE:  This issue is beyond the scope of the Supplemental
rulemaking.

Although the cost curves presented in the Transport Rule only included
EGU reductions, EPA also assessed the cost of NOX emission reductions
available for source categories other than EGUs in the rulemaking.  This
assessment for the Transport Rule concluded that there are little or no
reductions available from non-EGUs sources, such as those noted by the
commenter, at costs lower than the $500/ton threshold for NOX.

Kansas Proposed SIP Call

No comments received on this issue.

Other Out of Scope Comments

Commenter expresses concern that the SNPR does not include Nebraska and
South Dakota for ozone season NOX emissions.

At the current 75 ppb standard, Iowa does not have any nonattainment
areas for ozone, which is the primary driver for the rule and the
Supplemental Action. However, a 65 ppb standard could mean nonattainment
in several Iowa cities, and an even lower standard of 60 ppb would put
much of the state in nonattainment. Clearly Iowa’s own upwind air shed
plays a role in the State’s ozone levels, and these may become
problematic when the new NAAQS standard comes into play—as it should,
given the health benefits. [Iowa Environmental Council
(EPA-HQ-OAR-2009-0491-4572), p. 1-2.]

RESPONSE:  The Transport Rule and the SNPR address ozone transport under
the 1997 ozone standard.  These comments regarding transport to areas at
potential 60 or 65 ppb standards are thus beyond the scope of the rule.

Commenter expresses concern that the SNPR does not anticipate or address
scenarios associated with a revised 8-hour NAAQS for ozone.

EPA’s online materials (fact sheets, presentations) do not make
mention of any scenarios under a revised eight-hour NAAQS. And yet these
clearly are factors in determining ozone nonattainment. It is likely
that many more downwind counties than the ones shown in the presentation
at http://www.epa.gov/airtransport/pdfs/CSAPRPresentation.pdf will be
affected by nonattainment designations once the NAAQS is changed.  [Iowa
Environmental Council (EPA-HQ-OAR-2009-0491-4572), p. 2.]

RESPONSE:  The Transport Rule and the SNPR address ozone nonattainment
and maintenance for the 1997 ozone standards.  Because revised NAAQS are
beyond the scope of this rulemaking, and because the levels of the NAAQS
under these revisions are not yet known, it would not be appropriate to
include consideration of them in our online materials for this rule.
Other communications materials will address ozone attainment under
subsequent standards.  For example, EPA will be developing online
materials for area designations under the 2008 ozone standard of 75 ppb.

(C)  EPA’s opportunity for comment should allow for changes in
coverage in the other direction (adding states).

(1) Finally, we note that EPA’s SNPR provides opportunity for comment
for changes in coverage of the rule only in one direction. In
particular, opportunity for comment is provided with respect to states
linked to downwind monitors showing nonattainment and maintenance
problems in the revised analysis for CSAPR that were not so linked in
the prior analysis in the August 2010 proposed rule, but not for the
reverse. That is, EPA has not provided an opportunity for interested
persons to challenge the removal of a state from the rule’s
requirements as proposed last August on the grounds that the downwind
monitors to which those states were then linked did not evidence
nonattainment and maintenance problems in the revised CSAPR analysis. We
believe that EPA should adopt an even-handed approach to changes in
requirements of the rule resulting from revised analyses, both with
respect to subjecting additional states to the rule and to removing
states from coverage of the rule. While we are not requesting that EPA
reopen this rulemaking solely to address this issue, we do request the
Agency to consider this issue of fundamental fairness in future
rulemakings (or in further iterations of this one).  [Clean Air Task
Force, et al. (EPA-HQ-OAR-2009-0491-4588), p. 3.]

RESPONSE:  Comment noted and appreciated.  EPA will take this comment
into consideration in future rulemakings.

 First Energy. FirstEnergy Successfully Concludes Emission Allowance
Auction. Press release. November 18, 2011. Available on the Internet at
<http://www.fescsaprauction.info/Portals/0/Documents/News/2011-11-18%20F
ES%20Successfully%20Concludes%20Emission%20Allowance%20Auction.pdf>.

 First Energy. FirstEnergy Successfully Concludes Emission Allowance
Auction. Press release. November 18, 2011. Available on the Internet at
<http://www.fescsaprauction.info/Portals/0/Documents/News/2011-11-18%20F
ES%20Successfully%20Concludes%20Emission%20Allowance%20Auction.pdf>.

 First Energy. FirstEnergy Successfully Concludes Emission Allowance
Auction. Press release. November 18, 2011. Available on the Internet at
<http://www.fescsaprauction.info/Portals/0/Documents/News/2011-11-18%20F
ES%20Successfully%20Concludes%20Emission%20Allowance%20Auction.pdf>.

 Testimony of Chairman Jon Wellinghoff, Federal Energy Regulatory
Commission, Before the House Subcommittee on Energy and Power of the
Committee on Energy and Commerce United States House of Representatives,
September 14, 2011.

 PAGE 1


[Federal Register: November 24, 2010 (Volume 75, Number 226)]
[Notices]
[Page 71781-71783]
[DOCID:fr24no10-144]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-63336; File No. SR-EDGX-2010-17]

Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of
Filing of Proposed Rule Change To Amend EDGX Rules 11.9(b)(1)(C) and
11.5(c)(7) Regarding Step-Up Orders

    November 18, 2010
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that on November 8, 2010, EDGX Exchange, Inc. (the ``Exchange'' or
``EDGX'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the Exchange. The Commission
is publishing this notice to solicit comments on the proposed rule
change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to amend EDGX Rule 11.9(b)(1)(C) regarding
the description of the Step-up order type. The Exchange also proposes
to modify Rule 11.5(c)(7) to allow Mid-Point Match orders entered in
response to Step-up orders to be processed pursuant to Rule
11.9(b)(1)(C). The text of the proposed rule change is available on the
Exchange's Internet website at http://www.directedge.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

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

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

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

1. Purpose
    Exchange Rule 11.5(c)(11) defines a Step-up order as a ``market or
limit order with the instruction that the System display the order to
Users at or within the NBBO price pursuant to Rule 11.9(b)(1)(C).''
Exchange Rule 11.9(b)(1)(C), in turn, states that orders shall be
displayed to Users \3\ (hereinafter referred to as ``Members''),\4\ in
a manner that is separately identifiable from other Exchange orders, at
or within the NBBO price for a period of time not to exceed five
hundred milliseconds as determined by the Exchange (the ``Step-up
Display Period''). The Step-up Display Period is currently set at 25
milliseconds.
---------------------------------------------------------------------------

    \3\ Exchange Rule 11.9(b)(1) provides that (prior to display of
an order to a User), an incoming order shall first attempt to be
matched for execution against orders in the EDGX Book.
    \4\ Exchange Rule 1.5(cc) defines a User as ``any Member or
Sponsored Participant who is authorized to obtain access to the
System pursuant to Rule 11.3.''
---------------------------------------------------------------------------

    The Exchange proposes to amend Rule 11.9(b)(1)(C) to add language
to the rule text which will provide that at the conclusion of the Step-
up Display Period, the Step-up order shall execute against responsive
User orders priced at or within the NBBO, prevailing at the end of the
Step-up Display Period on a price/time priority basis consistent with
Rule 11.8(a)(1) and (2). Rules 11.8(a)(1) and (2), in turn, provide
that orders of Users shall be ranked and maintained in the EDGX Book
based on the following priority: (i) The highest-priced order to buy
(or lowest-priced order to sell) shall have priority over all other
orders to buy (or orders to sell); (ii) where orders to buy (or sell)
are made at the same price, the order clearly established as the first
entered into the System at such particular price shall have precedence
at that price, up to the number of shares of stock specified in the
order. Commencing on the six month anniversary of {Insert Commission
approval date of this rule filing{time} , the orders eligible for
executing against Step-up orders shall be expanded to include User
orders priced better but not outside the NBBO at the end of the Step-up
Display Period (such orders, ``Eligible Book Orders'').
    In effect, Step-up orders permit a Member to initiate a price
auction of such orders by displaying order solicitation information to
other Members simultaneously, provided such other Members have elected
to receive such order information (each such Member, an ``Electing
Member''). After the passage of the Step-up Display Period, the Step-up
orders are executed against responses and, commencing on the six month
anniversary of {Insert Commission approval date of this rule
filing{time} , Eligible Book Orders, on a price/time priority basis in
accordance with Rule 11.8(a)(1) and (2). Responses are accumulated for
the Step-up Display Period by the Exchange, rather than processed at
arrival time. Eligible Book Orders will continue to be eligible for
execution against the EDGX Book during the Step-up Display Period.
    For example, assume the NBBO (national best bid/offer) is 10.10 x
10.12. If Member A enters a Step-up order to buy 500 shares of ABC
security at the prevailing national best offer ($10.12) and such Step-
up order cannot execute against the EDGX Book then Electing Members
will receive a solicitation to sell 500 shares of ABC security at
$10.12 or lower. If Electing Members X, Y, and Z transmit an order to
sell 500 shares (or less) of ABC security at the prevailing national
best offer or lower (i.e, $10.12 or lower), within the Step-up Display
Period, they would all participate in a price auction, which would be
awarded at the end of the Step-up Display Period on a price/time
priority basis based on the prevailing NBBO at the end of such

time period. Therefore, if EDGX receives an order to sell 500 shares at
$10.11 from Electing Member X, then receives an order to sell 200
shares at $10.10 from Electing Member Y and lastly receives an order to
sell 200 shares at $10.11 from Electing Member Z, Electing Member Y
would have priority over Electing Members X and Z based on price
priority, assuming that such orders were received within the Step-up
Display Period. As a result, Electing Member Y's order would execute
against Member A's Step-up order for 200 shares at $10.10. The
remaining 300 shares would be awarded to Electing Member X at $10.11,
since Electing Member X has time priority over Electing Member Z.
Following the six month anniversary of {Insert Commission approval date
of this rule filing{time} , if non-electing Member W had an order to
sell 500 shares at $10.11 that was entered before Electing Member X's
order and it was not otherwise executed on the EDGX Book prior to the
end of the Step-up Display Period, then the remaining 300 shares in the
above example would be executed against Member W's order, since Member
W would have time priority over both Electing Members X and Z.
    The Exchange believes that this proposed amendment provides more
transparency regarding the timing associated with the price auction.
    The Exchange also proposes to amend Rule 11.5(c)(7) to allow Mid-
Point Match orders that are entered in response to Step-up orders to be
eligible for execution pursuant to Rule 11.9(b)(1)(C), as described
above.
    In response to the price auction described above, the Exchange will
not accept orders priced in subpennies. The respondent User could enter
a Mid-Point Match order, however, that would be eligible for execution
at the midpoint of the prevailing NBBO at the end of the Step-up
Display Period.
    The Exchange believes the midpoint response described above will
provide an additional pricing mechanism for the respondent User that is
willing to offer price improvement, but is unwilling to cross the
spread between the national best bid and offer to do so. By providing
this option, the Exchange believes that a greater proportion of Step-up
orders will receive price improvement. In addition, because the
midpoint response will execute all trades at the midpoint of the NBBO,
it will never execute a trade outside of the NBBO. If the national best
bid for a security underlying a Step-up order equals or ``locks'' the
national best offer for such security, a Mid-Point Match order response
will execute all trades at the locked price.
    The Step-up order process will not generate an execution if the
national best bid (offer) for the security underlying a Step-up order
is priced better than or ``crosses'' the national best offer (bid) for
such security. In the event of a ``crossed'' market or an absence of
responsive User orders at or within the NBBO and, commencing on the six
month anniversary of {Insert Commission approval date of this rule
filing{time} , Eligible Book Orders at the end of the Step-up Display
Period, the Step-up process shall terminate and the Step-up order shall
be cancelled or routed in accordance with the User's instructions.
2. Statutory Basis
    The statutory basis for the proposed rule change is Section 6(b)(5)
of the Act,\5\ which requires the rules of an exchange to promote just
and equitable principles of trade, to remove impediments to and perfect
the mechanism of a free and open market and a national market system
and, in general, to protect investors and the public interest. The
proposed rule change also is designed to support the principles of
Section 11A(a)(1) \6\ of the Act in that it seeks to assure fair
competition among brokers and dealers and among exchange markets. The
Exchange believes that the proposed rule meets these requirements in
that it seeks to promote the efficient execution of investor
transactions, and thus investor confidence, over the long term by
providing additional transparency relating to the execution of Step-up
orders.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b)(5).
    \6\ 15 U.S.C. 78k-1(a)(1).
---------------------------------------------------------------------------

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

    The proposed rule change does not impose 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

    The Exchange has not solicited, and does not intend to solicit,
comments on this proposed rule change. The Exchange has not received
any unsolicited written comments from members or other interested
parties.

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-EDGX-2010-17 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-EDGX-2010-17. 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,\7\ 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, on official
business days between the hours of 10 a.m. and 3 p.m. Copies of the
filing also will be available for inspection and copying at the
principal office of the Exchange. All comments received will be posted
without change; the Commission does not edit personal identifying
information from submissions. You should submit only information that
you wish to make available publicly. All submissions should refer to
File Number SR-EDGX-2010-17 and should be submitted on or before
December 15, 2010.
---------------------------------------------------------------------------

    \7\ The text of the proposed rule change is available on the
Commission's Web site at http://www.sec.gov/rules/sro.shtml.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\8\
---------------------------------------------------------------------------

    \8\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-29591 Filed 11-23-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Notices]
[Pages 11518-11521]
[FR Doc No: 2011-4698]

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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

[Docket No. 2010-0046]

QPS Evaluation Services Inc.; Recognition as an NRTL

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Notice.

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SUMMARY: This notice announces the Agency's final decision to grant
recognition to QPS Evaluation Services Inc., as a Nationally Recognized
Testing Laboratory under 29 CFR 1910.7.

DATES: This recognition becomes effective on March 2, 2011 and will be
valid until March 2, 2016, unless terminated or modified prior to that
date in accordance with 29 CFR 1910.7.

FOR FURTHER INFORMATION CONTACT: Office of Technical Programs and
Coordination Activities, NRTL Program, Occupational Safety and Health
Administration, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Room N-3655, Washington, DC 20210, or phone<PHONE_NUMBER>. For more
information about the Nationally Recognized Testing Laboratory Program,
go to http://osha.gov and select ``N'' in the site index.

SUPPLEMENTARY INFORMATION:

Notice of Final Decision

    The Occupational Safety and Health Administration (OSHA) hereby
gives notice of its recognition of QPS Evaluation Services Inc., (QPS)
as a Nationally Recognized Testing Laboratory (NRTL). The scope of this
recognition includes testing and certification of the equipment and
materials, and use of the supplemental program, listed below. OSHA will
detail QPS's scope of recognition on an informational Web page for the
NRTL, as further explained below.
    OSHA recognition of an NRTL signifies that the organization meets
the legal requirements specified in 29 CFR 1910.7. Recognition is an
acknowledgment that the organization can perform independent safety
testing and certification of the specific products covered within its
scope of recognition, and is not a delegation or grant of government
authority. As a result of recognition, employers may use products
approved by the NRTL to meet OSHA standards that require product
testing and certification.
    The Agency processes applications by an NRTL for initial
recognition, or for expansion or renewal of this recognition, following
requirements in Appendix A to 29 CFR 1910.7. This appendix requires
that the Agency publish two notices in the Federal Register in
processing an application. In the first notice, OSHA announces the
application and provides its preliminary finding and, in the second
notice, the Agency provides its final decision on the application.
These notices set forth the NRTL's scope of recognition, or
modifications of that scope. OSHA maintains an informational Web page
for each NRTL that details its scope of recognition. These pages are
available from OSHA's Web site at http://www.osha-slc.gov/dts/otpca/nrtl/index.html.
    Each NRTL's scope of recognition has three elements: (1) The type
of products the NRTL may test, with each type specified by its
applicable test standard; (2) the recognized site(s) that has/have the
technical capability to perform the product testing and certification
activities for test standards within the NRTL's scope; and (3) the
supplemental program(s) that the NRTL may use, each of which allows the
NRTL to rely on other parties to perform activities necessary for
product testing and certification.
    QPS applied for recognition as an NRTL (See Ex. 2--QPS application
dated 1/27/2006) \1\ pursuant to 29 CFR 1910.7, and OSHA published the
required preliminary notice in the Federal Register on November 18,
2010 (75 FR 70696) to announce the application. The notice included a
preliminary finding that QPS could meet the requirements for
recognition detailed in 29 CFR 1910.7, and invited public comment on
the application by December 20, 2010. OSHA received no comments in
response to the notice. OSHA now is proceeding with this final notice
to grant QPS's recognition application.
---------------------------------------------------------------------------

    \1\ A number of documents, or information within documents,
described in this Federal Register notice are the applicant's
internal, detailed procedures, or contain other confidential
business or trade-secret information. These documents and
information, designated by an ``NA'' at the end of, or within, the
sentence or paragraph describing them, are not available to the
public.
---------------------------------------------------------------------------

    All public documents pertaining to the QPS application are
available for review by contacting the Docket Office, Occupational
Safety and Health Administration, U.S. Department of Labor, 200
Constitution Avenue, NW., Room N-2625, Washington, DC 20210. These
materials also are available online at http://www.regulations.gov under
Docket No. OSHA-2010-0046.
    The current address of the laboratory facility (site) that OSHA
recognizes for QPS is: QPS Evaluation Services Inc., 81 Kelfield
Street, Unit 8, Toronto, Ontario, M9W 5A3, Canada.

General Background on the Application

    According to the application, QPS was established in 1995 as a
Canadian Standards Association field-inspection agency. In 1998, QPS
performed technical services for Entela, Inc., an organization formerly
recognized by OSHA as an NRTL, which another NRTL subsequently
acquired. The application also states that QPS received accreditation
by other well-known accreditors (i.e., the Standards Council of Canada
and the International Electrotechnical Commission Certification Body
(IEC CB) Scheme).
    QPS applied on January 27, 2006, for recognition of one site and a
number of test standards. (See Ex. 2.) In response to OSHA's request
for clarification, QPS amended its application to provide additional
technical details, and then provided further details in a later update.
(See Ex. 3--QPS amended application, dated 4/15/2008 and 11/30/2009.)
OSHA's NRTL Program staff performed an on-site assessment of the QPS
facility in April 2010. Based on this assessment, the OSHA staff
recommended recognition of QPS in their on-site review report of the
assessment. (See Ex. 4--OSHA on-site review report on QPS.)
    Through its amended application information (see Ex. 3), QPS
represented that it maintains the experience, expertise, personnel,
organization, equipment, and facilities suitable for accreditation as
an OSHA Nationally Recognized Testing Laboratory. It also represented
that it meets, or will meet, the requirements for recognition defined
in 29 CFR 1910.7.
    OSHA addresses the four requirements for recognition (i.e.,
capability, control procedures, independence, and creditable reports
and complaint handling) below, along with examples that illustrate how
QPS meets each of these requirements. The applicant's summary
addressing OSHA's evaluation criteria references

many, but not all, of the documents or processes described below (see
the QPS basic information summary; hereafter, ``Basic Summary,'' which
is part of Ex. 3, portions of which are confidential).

Capability

    Section 1910.7(b)(1) states that, for each specified item of
equipment or material proposed for listing, labeling, or acceptance,
the NRTL must have the capability (including proper testing equipment
and facilities, trained staff, written testing procedures, and
calibration and quality-control programs) to perform appropriate
testing. The ``Capability'' section of the Basic Summary (NA) shows
that the applicant has security measures and detailed procedures in
place to restrict or control access to its facility, to areas within
its facility, and to confidential information. This section also states
that QPS's facility has equipment for monitoring, controlling, and
recording environmental conditions during tests. QPS provided a list of
this equipment, which NRTL Program staff examined during the on-site
review (Ex. 4, p. 1). This section shows that QPS has detailed
procedures for handling test samples. In addition, the Basic Summary or
documents it references show that the QPS facility has adequate test
areas and energy sources, and procedures for controlling incompatible
activities. QPS provided a detailed list of its testing equipment (NA),
and OSHA's on-site review (Ex. 4, p. 2) confirmed that much of this
equipment is in place. Review of the application shows that the
equipment listed is available (NA) and adequate for the scope of
testing described below.
    The ``Capability'' section of the Basic Summary (NA) indicates that
QPS has detailed procedures addressing the maintenance and calibration
of equipment, as well as the types of records maintained for, or
supporting, many laboratory activities. It also indicates that QPS has
detailed procedures for conducting testing, review, and evaluation, and
for capturing the test and other data required by the standard for
which it seeks recognition. OSHA's on-site review (Ex. 4, p. 2)
examined these test data and evaluation documents. QPS currently is
using some of these procedures to test products for NRTLs. Further,
this section indicates that QPS has detailed procedures for processing
applications, and for developing new procedures.
    The amended application (Ex. 3) contained adequate procedures to
address training or qualifying staff for particular technical tasks
(NA). The amended application indicates that QPS has sufficient
qualified personnel to perform the proposed scope of testing based on
their education, training, technical knowledge, and experience. OSHA's
on-site review (Ex. 4, p. 3) confirmed many of these qualifications.
The amended application provides evidence that QPS has an adequate
quality-control system in place, and OSHA's on-site review (Ex. 4, p.
3) verified the performance of internal audits, and tracking and
resolution of nonconformances.

Control Procedures

    Section 1910.7(b)(2) requires that the NRTL provide controls and
services, to the extent necessary, for the particular equipment or
material proposed for listing, labeling, or acceptance. These controls
and services include procedures for identifying the listed or labeled
equipment or materials, inspections of production runs at factories to
assure conformance with test standards, and field inspections to
monitor and assure the proper use of identifying marks or labels.
    The ``Control Programs'' section of the Basic Summary shows that
QPS has the quality-control manual and detailed procedures to address
the steps involved to list and certify products. QPS has a registered
certification mark. In addition, the ``Control Programs'' section shows
that the applicant has certification procedures (NA); these procedures
address the authorization of certifications and audits of factory
facilities. The audits apply to both the initial evaluations and the
follow-up inspections of manufacturers' facilities. This section
indicates that procedures also exist for authorizing the use of the
certification mark, and the actions taken when QPS finds that the
manufacturer is deviating from the certification requirements. Factory
inspections will be a new activity for QPS, and OSHA will need to
review the effectiveness of QPS's inspection program when it is in
place. As a result, OSHA is proposing a condition to ensure that QPS
conducts inspections properly, and at the frequency set forth in the
applicable NRTL Program policy (see OSHA Instruction CPL 1-0.3,
Appendix C, paragraph III.A).

Independence

    Section 1910.7(b)(3) requires that the NRTL be completely
independent of employers that are subject to the testing requirements,
and of any manufacturers or vendors of equipment or materials tested
under the NRTL Program. OSHA has a policy for the independence of NRTLs
that specifies the criteria used for determining whether an
organization meets the above requirement. (See OSHA Instruction CPL 1-
0.3, Appendix C, paragraph V.) This policy contains a non-exhaustive
list of relationships that would cause an organization to fail to meet
the specified criteria. The ``Independence'' section of the Basic
Summary, and additional information submitted by QPS (NA), shows that
it has none of these relationships, or any other relationship that
could subject it to undue influence when testing for product safety.
QPS is a privately owned organization, and OSHA found no information
about its ownership that would qualify as a conflict under OSHA's
independence policy. The amended application indicates that there is no
financial affiliation between the ownership of QPS and manufacturers.
In summary, the information related to independence demonstrates that
QPS meets the independence requirement.

Credible Reports and Complaint Handling

    Section 1910.7(b)(4) specifies that an NRTL must maintain effective
procedures for producing credible findings and reports that are
objective and free of bias, and for handling complaints and disputes
under a fair and reasonable system. The ``Report and Complaint
Procedures'' section of the Summary document (NA) shows that the
applicant has detailed procedures describing the content of the test
reports, and other detailed procedures describing the preparation and
approval of these reports. This section also shows that the applicant
has procedures for recording, analyzing, and processing complaints from
users, manufacturers, and other parties in a fair manner. The on-site
review (Ex. 4, p. 3) confirmed that QPS processes complaints in a
timely and appropriate manner.

Supplemental Programs

    OSHA is approving QPS to use the following supplemental program for
which it applied:
    Program 9: Acceptance of services other than testing or evaluation
performed by subcontractors or agents (for calibration services only).
    QPS applied to use additional programs, but then voluntarily
withdrew its request after OSHA informed QPS that OSHA was ending the
practice of approving most of these programs for new applicants. In the
past, when granting NRTL recognition to an organization, OSHA approved
the applicant's use of any supplemental programs for which the
applicant met the criteria. However, OSHA is

discontinuing this practice for new applicants for the NRTL Program
because the applicants do not yet have experience in implementing the
procedures for testing, evaluating, and performing inspections used
under the NRTL Program. This practice did not allow the NRTL's staff at
its recognized site(s) to attain the necessary experience, nor did the
practice allow OSHA adequate time to evaluate properly that staff's
technical experience. OSHA also is discontinuing the practice when an
existing NRTL applies to expand its recognition under the NRTL Program
to include additional standards for testing a type of product not
tested previously by the NRTL under the NRTL Program. Examples of such
product testing include testing hazardous-location products when OSHA
recognizes the NRTL for testing only ordinary-location products, and
testing gas-operated products when OSHA limits the NRTL's recognition
to testing only electrically operated products. Therefore, before OSHA
approves any NRTL or applicant to use or rely on tests, evaluations,
and inspections performed by other parties, OSHA must first ensure that
the NRTL/applicant performs these activities adequately using its own
staff located at its recognized site(s). The only exception to this
policy is Program 9, which permits the use of qualified parties to
calibrate an NRTL's testing equipment. This exception does not affect
materially the capability of an NRTL/applicant to meet OSHA's
requirements for recognition. However, regarding approval to use
Program 9 for other services or supplemental programs, an NRTL/
applicant may apply for such approval when OSHA determines that the
NRTL/applicant tests, evaluates, and performs inspections adequately
using its own staff located at its recognized site(s). Accordingly,
OSHA will continue to deny use of such a program, or withdraw its prior
approval to use such a program, when it determines that an NRTL/
applicant is not testing, evaluating, and performing inspections
adequately using its own staff located at its recognized site(s).

Additional Condition

    As described above, while QPS has testing and evaluation
procedures, OSHA could not review how QPS implemented them because QPS
did not use them for testing and certifying products under the program.
In addition, as also described above, while QPS has factory-inspection
procedures, it currently does not conduct regular factory inspections.
QPS recently developed some of these testing- and factory-inspection
procedures. Therefore, OSHA also must review the effectiveness of QPS's
testing and evaluation procedures, as well as its factory-inspection
program, following recognition of QPS as an NRTL, and do so within a
reasonable period after granting such recognition. Consequently, OSHA
recognizes QPS conditionally, subject to a later determination of the
effectiveness of these procedures. OSHA is listing this condition first
under the ``Conditions'' section below. This condition applies solely
to QPS's operations as an NRTL, and only to those products that it
certifies for purposes of enabling employers to meet OSHA product-
approval requirements. This condition is in addition to all other
conditions that OSHA normally imposes in its recognition of an
organization as an NRTL.
    Imposing this condition is consistent with OSHA's past recognition
of organizations as NRTLs that met the basic recognition requirements,
but needed to further refine or implement their procedures (for
example, see 63 FR 68306, 12/10/1998, and 65 FR 26637, 05/08/2000).
Based on QPS's current activities in testing and certification, OSHA is
confident that QPS will perform its activities properly in the areas
noted above.

Final Decision and Order

    The NRTL Program staff examined QPS's application, the additional
submissions, the on-site review report, and other pertinent documents.
Based on this examination and analysis, OSHA finds that QPS meets the
requirements of 29 CFR 1910.7 for recognition as a Nationally
Recognized Testing Laboratory, subject to the limitation and conditions
listed below. The recognition applies to the site listed above, and it
covers the test standards listed below, subject to the limitation and
conditions also listed below. Pursuant to the authority granted by 29
CFR 1910.7, OSHA hereby grants the recognition of QPS, subject to this
limitation and these conditions.

Limitation

    OSHA hereby limits the recognition of QPS to testing and
certification of products for demonstration of conformance to the
following test standards, each of which OSHA determines is an
appropriate test standard within the meaning of 29 CFR 1910.7(c).\2\
---------------------------------------------------------------------------

    \2\ The designations and titles of these test standards were
current at the time of the preparation of this notice.

UL 508A Industrial Control Panels.
UL 913 Intrinsically Safe Apparatus and Associated Apparatus for Use in
Class I, II, III, Division I, Hazardous (Classified) Locations.
UL 1203 Explosion Proof and Dust Ignition Proof Electrical Equipment
for Use in Hazardous (Classified) Locations.
UL 6500 Audio/Video and Musical Instrument Apparatus for Household,
Commercial, and Similar General Use.
UL 60335-1 Safety of Household and Similar Electrical Appliances, Part
1: General Requirements.
UL 60601-1 Medical Electrical Equipment, Part 1: General Requirements
for Safety.
UL 60950 Information Technology Equipment.
UL 61010-1 Electrical Equipment for Measurement, Control, and
Laboratory Use--Part 1: General Requirements.

    OSHA limits recognition of any NRTL for a particular test standard
to equipment or materials (i.e., products) for which OSHA standards
require third-party testing and certification before use in the
workplace. Consequently, if a test standard also covers any product for
which OSHA does not require such testing and certification, an NRTL's
scope of recognition does not include that product.
    The American National Standards Institute (ANSI) may approve the
test standard listed above as an American National Standard. However,
for convenience, we may use the designation of the standards-developing
organization for the standard instead of the ANSI designation. Under
the NRTL Program's policy (see OSHA Instruction CPL 1-0.3, Appendix C,
paragraph XIV), any NRTL recognized for a particular test standard may
use either the proprietary version of the test standard or the ANSI
version of that standard. Contact ANSI to determine whether a test
standard is currently ANSI-approved.

Conditions

    QPS also must abide by the following conditions of its NRTL
recognition, in addition to those conditions already required by 29 CFR
1910.7:
    1. Within 30 days of certifying its first products under the NRTL
Program, QPS will notify the OSHA NRTL Program Director of this
activity so that OSHA

may schedule its first audit of QPS. At this first audit of QPS, QPS
must demonstrate that it properly conducted testing, review,
evaluation, and factory inspections; QPS must conduct factory
inspections at the frequency set forth in the applicable NRTL Program
policy.
    2. QPS will allow OSHA access to its facilities and records to
ascertain continuing compliance with the terms of its NRTL recognition,
and to perform such investigations as OSHA deems necessary;
    3. If QPS has reason to doubt the efficacy of any test standard it
is using under its NRTL recognition, it will promptly inform the test
standard-developing organization of this concern, and provide that
organization with the appropriate relevant information on which it
bases its concern;
    4. QPS will not engage in, or permit others to engage in, any
misrepresentation of the scope or conditions of its recognition. As
part of this condition, QPS agrees that it will allow no representation
that it is either a recognized or an accredited NRTL without clearly
indicating the specific equipment or material to which this recognition
applies, and also clearly indicating that OSHA limits its NRTL
recognition to specific products;
    5. QPS will inform OSHA as soon as possible, in writing, of any
change of ownership, facilities, or key personnel, and of any major
changes in its operations as an NRTL, including details of these
changes;
    6. QPS will meet all of the terms of its NRTL recognition, and will
always comply with all OSHA policies pertaining to this recognition;
and
    7. QPS will continue to meet the requirements for NRTL recognition
in all areas covered by the scope of this recognition.

Authority and Signature

    David Michaels, PhD, MPH, Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue, NW.,
Washington, DC 20210, directed the preparation of this notice.
Accordingly, the Agency is issuing this notice pursuant to Sections
6(b) and 8(g) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 655 and 657), Secretary of Labor's Order No. 4-2010 (75 FR
55355), and 29 CFR part 1911.

    Signed at Washington, DC, on February 25, 2011.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2011-4698 Filed 3-1-11; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register Volume 85, Number 172 (Thursday, September 3, 2020)]
[Notices]
[Pages 55061-55065]
[FR Doc No: 2020-19511]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2020-0098]

Hours of Service of Drivers; Pilot Program To Allow Commercial
Drivers To Pause Their 14-Hour Driving Window

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

ACTION: Notice of proposed pilot program; request for comments.

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

SUMMARY: FMCSA proposes a pilot program to allow temporary regulatory
relief from the Agency's hours-of-service (HOS) requirement that all
driving by drivers of property-carrying commercial motor vehicles
(CMVs) be completed within 14 hours after coming on duty. During the
pilot program, known as the Split Duty Period Pilot Program,
participating CMV drivers would have the option to pause their 14-hour
on-duty period (also called a driving window) with one off-duty period
of no less than 30 minutes and no more than 3 hours. Participation
would be limited to a certain number of commercial driver's license
(CDL) holders who meet the criteria specified for participation. This
pilot program seeks to gather statistically reliable evidence whether
decisions concerning the timing of such flexibility can be aligned with
employers', shippers', and receivers' scheduling preferences to
optimize productivity while ensuring safety performance at a level
equivalent to or greater than what would be achieved absent the
regulatory relief.

DATES: Comments must be received on or before November 2, 2020. The
implementation date of the Pilot Program would be announced in
subsequent Federal Register notices.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID [FMCSA-2020-0098] using any of the
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Send comments to Docket Operations, U.S. Department
of Transportation, 1200 New Jersey Avenue SE, West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: Deliver comments to Docket
Operations, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590 between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
    Instructions: All submissions must include the Agency name and the
docket number. For detailed instructions on submitting comments and
additional information on the exemption process, see the Public
Participation heading below. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading
below.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov, and follow the
online instructions for accessing the dockets, or go to the street
address listed above.
    Privacy Act: DOT posts comments submitted to the rulemaking docket,
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.
    Public Participation: The Federal eRulemaking Portal is available
24 hours each day, 365 days each year. You can obtain electronic
submission and retrieval help and guidelines under the ``help'' section
of the Federal eRulemaking Portal website. If you want us to notify you
that we received your comments, please include a self-addressed,
stamped envelope or postcard, or print the acknowledgement page that
appears after submitting comments online. Comments received after the
comment closing date will be included in the docket and will be
considered to the extent practicable.

FOR FURTHER INFORMATION CONTACT: Nicole Michel, Research Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001, by email at<EMAIL_ADDRESS>or by
telephone at<PHONE_NUMBER>. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826. Further information will be posted at the website for
the proposed pilot program: https://www.fmcsa.dot.gov.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    FMCSA encourages you to participate by submitting comments and
related materials. In this notice, FMCSA requests certain information,
but comments need not be limited to those requests.

Submitting Comments

    If you submit a comment, please include the docket number for this
notice (FMCSA-2020-0098), indicate the specific section of this
document to which the comment applies, and provide a reason for
suggestions or recommendations. You may submit your comments and
material online, by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a phone number in the body of
your document so the Agency can contact you if it has questions
regarding your submission.
    To submit your comment online, go to www.regulations.gov, put the
docket number, ``FMCSA-2020-0098'' in the ``Keyword'' box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box in the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit. If you submit your comments by
mail or hand delivery, submit them in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you
submit comments by mail and would like to know that they reached the
facility, please enclose a stamped, self-addressed postcard or
envelope. FMCSA will consider all comments and material received during
the comment period.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this notice as
being available in the docket, go to www.regulations.gov and insert the
docket number, ``FMCSA-2020-0098'' in the ``Keyword'' box and click
``Search.'' Next, click the ``Open Docket Folder'' button and choose
the document listed to review. If you do not have access to the
internet, you may view the docket online by visiting Docket Operations
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m.,
e.t., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call<PHONE_NUMBER> or (202) 366-
9826 before visiting Docket Operations.

II. Legal Basis

    The FMCSA has authority under 49 U.S.C. 31315(c) to conduct pilot
programs. These programs are research studies where one or more
exemptions are granted to allow for the testing of innovative
alternatives to certain Federal Motor Carrier Safety Regulations
(FMCSRs). FMCSA must publish in the Federal Register a detailed
description of each pilot program, including the exemptions being
considered, and provide such notice and an opportunity for public
comment before the effective date of the program. The Agency is
required to ensure that the safety measures in the pilot programs are
designed to achieve a level of safety that is equivalent to, or greater
than, the level of safety that would be achieved through compliance
with the safety regulations. Pilot programs are limited to not more
than 3 years from the starting date.
    At the conclusion of each pilot program, FMCSA must submit a report
to Congress concerning the findings, conclusions, and recommendations,
including suggested amendments to laws and regulations that would
enhance motor carrier, commercial motor vehicle (CMV), and driver
safety, and improve compliance with the FMCSRs.

III. Background

HOS Rulemaking--Pause to the 14-Hour Window

    On August 22, 2019, FMCSA published a Notice of Proposed Rulemaking
(NPRM) concerning drivers' hours of service which proposed certain
amendments to provide greater flexibility for drivers, without
adversely affecting safety (84 FR 44190). As part of that rulemaking,
FMCSA proposed that a single off-duty break of between 30 minutes and 3
consecutive hours may be excluded from the 14-hour driving window,
provided the driver has at least 10 consecutive hours off-duty at the
end of the work shift. The Agency explained that a single pause of up
to 3 hours would provide significantly more flexibility than is allowed
under the current rules. The pause would have allowed drivers to take
an off-duty break without fear of exhausting their available hours
under the 14-hour clock, which would also have allowed them to get
additional rest or avoid traffic congestion.

FMCSA Decision To Exclude the Pause From the Final Rule

    After reviewing the public comments to the NPRM, the Agency decided
not to include the pause to the 14-hour driving window in the Final
Rule, published on June 1, 2020 (85 FR 33396). FMCSA continues to
believe that an opportunity for a single off-duty pause in the 14-hour
driving window could provide flexibility for drivers without
compromising safety, as explained in the NPRM. However, many commenters
to the NPRM believed that drivers would be pressured by carriers,
shippers, or receivers to use the break to cover detention time, which
would not necessarily provide the driver an optimal environment for
restorative rest. This suggests that the pause could have unintended
consequences that were not adequately evaluated in the development of
the NPRM.
    In considering the initiation of a pilot program, the Agency
continues to believe that an off-duty break of up to 3 consecutive
hours during a work shift may enable drivers to avoid congestion. The
subsequent driving time would then be more productive, as drivers may
have a greater opportunity to travel at the posted speed limits rather
than at lower speeds through heavy traffic and congestion. It may also
reduce the pressure to drive above the posted speed limits because of
concerns raised by the 14-hour clock. In addition, drivers could take a
rest break to reduce the likelihood of experiencing fatigue while
driving. Because drivers would continue to take 10 consecutive hours
off-duty at the end of the work shift, exercising the pause option
during the work shift would increase the drivers' off-duty time during
the work week. This increased productivity, resulting from an ability
to avoid congestion, would be accomplished without altering the maximum
amount of on-duty time that could be accumulated before driving is
prohibited, or increasing the maximum driving time allowed during a
work shift.
    FMCSA acknowledges that the potential benefits of increased
flexibility could be undermined if the pause is used by carriers,
shippers, or receivers for purposes other than the productivity and
safety of drivers, especially to compensate for time wasted during the
14-hour driving window due to detention periods. Under such a scenario,
the Agency believes that the off-duty period may not provide a
meaningful opportunity for drivers to rest. The pilot program is
designed, among other things, to discover the extent to which
``detention pauses''

occur and their effect on drivers, compared to pauses taken under other
circumstances.
    FMCSA believes a pilot program would provide an innovative,
collaborative approach for evaluating concerns about the use of a pause
to the 14-hour window. Through the pilot program the Agency could
gather data and information concerning real-world actions and decisions
among drivers, employers, and shippers and receivers to reach a common
understanding of how to give drivers more opportunities for rest and
increased efficiency.
    With regard to safety impacts, the Agency notes that the additional
break of up to 3 consecutive hours would be off-duty. This means the
extension of the driving window would not result in drivers working
additional hours; the maximum amount of on-duty time that could be
accumulated before a driver would be prohibited from driving during a
work shift would remain at 14 hours. Furthermore, drivers would still
be required to have 10 consecutive hours off-duty at the end of their
shift, and would continue to be subject to all of the cumulative limits
that normally apply to them.
Applicable Regulations
    Under 49 CFR 395.3(a)(2), a driver of a property-carrying CMV may
drive only during a period of 14 consecutive hours after coming on duty
following 10 consecutive hours off duty. The driver may not drive after
the end of the 14-consecutive-hour period without first taking 10
consecutive hours off duty.
    The Split Duty Period Pilot Program would offer participating
drivers relief from these provisions by allowing one off-duty period of
no less than 30 minutes and not more than 3 hours which would not count
towards the 14-hour period (also referred to in this notice as the 14-
hour on-duty window). Drivers would still be required to take 10
consecutive hours off duty before returning to duty.
Relevant Research
    FMCSA will conduct additional research during the refinement of the
pilot program design through a literature review of applicable studies
regarding safety impacts of allowing a pause in duty status. The Agency
believes that the proposal for this pilot program is supported by ``The
Impact of Driving, Non-Driving Work, and Rest Breaks on Driving
Performance in Commercial Motor Vehicle Operations'' (Blanco, M.,
Hanowski, R., Olson, R., Morgan, J., Soccolich, S., Wu, S.C., & Guo, F.
(2011)). That study showed that the Safety Critical Event (SCE) rate
increased modestly with increasing work and driving hours, up to a 14-
hour on-duty period. Blanco also found that breaks can be used to
counteract the negative effects of time-on-task. The results from the
break analyses indicated that significant safety benefits can be
afforded when drivers take breaks from driving. This study data cannot
be extrapolated to determine the potential impact of including up to a
3-hour pause in the 14-hour on-duty period, however. After completion
of a thorough literature review, any additional relevant information
will be included in subsequent Federal Register notices prior to
initiation of the pilot program.

IV. Pilot Program Requirements

    Specific requirements for pilot programs are found in subparts D
and E of 49 CFR part 381. A pilot program is a study in which
participants are given exemptions from one or more provisions of the
FMCSRs for up to 3 years to gather data to evaluate alternatives or
innovative approaches to regulations, while ensuring that an equivalent
level of safety is maintained.
    A pilot program must include a program plan that incorporates the
following six elements:
    (1) A scheduled duration of 3 years or less;
    (2) A specific data collection and safety analysis plan that
identifies a method of comparing the safety performance of motor
carriers, CMVs, and drivers operating under the terms and conditions of
the pilot program, with the safety performance of motor carriers, CMVs,
and drivers that comply with the regulation;
    (3) A reasonable number of participants necessary to yield
statistically valid findings;
    (4) A monitoring plan to ensure that participants comply with the
terms and conditions of participation in the pilot program;
    (5) Adequate safeguards to protect the health and safety of study
participants and the general public; and
    (6) A plan to inform the States and the public about the pilot
program and to identify approved participants to enforcement personnel
and the general public. (49 CFR 381.500).
    At the conclusion of each pilot program, the FMCSA reports to
Congress the findings and conclusions of the program and any
recommendations it considers appropriate, including suggested
amendments to laws and regulations that would enhance motor carrier,
CMV, and driver safety and improve compliance with the FMCSRs (49 CFR
381.520).

V. Structure of the Pilot Program

    This pilot program seeks to gather statistically reliable evidence
on the question whether an optional off-duty period of between 30
minutes and three hours, pausing the 14-hour window, affects safety
performance, and what effect scheduling preferences of employers,
shippers, and receivers have on safety outcomes. Safety performance
would be evaluated through a review of data and information concerning
work schedules (including driving time), rest schedules, and driver on-
road performance.
    Currently, interstate drivers of property-carrying CMVs must
complete all driving within 14 hours after coming on duty (49 CFR
395.3(a)(2)). The pilot program would give participating drivers a
temporary exemption from this requirement, within parameters specified
by the Agency. For study purposes, drivers would be allowed to pause
their 14-hour on-duty window by no less than 30 minutes and not more
than 3 hours.
    FMCSA would recruit CDL drivers who operate a CMV as their primary
means of employment. The study group would include drivers from small,
medium, and large carriers, as well as independent owner-operators. To
ensure that the study will be able to detect statistically significant
differences in the safety performance between drivers utilizing a
``pause'' and drivers operating under current regulations, FMCSA is
estimating the desired sample size in the final study design to be
between 200 and 400 drivers over a period of up to 3 years. While the
entire study will be limited to a maximum period of 3 years, individual
driver participation may also be limited to a period of 6 months or 1
year, depending on final study design.
    Participating carriers that meet the eligibility criteria, as
described later in this notice, would be able to assist in recruiting
study group drivers. Drivers would be enrolled in the study contingent
upon approval from their carrier, as applicable. Owner-operators would
need to be leased to a single carrier and obtain the carrier's approval
in order to be eligible to participate, to facilitate granting of the
exemption and to mitigate data collection privacy concerns. Drivers
would need to participate in the study operating under current
regulations for a baseline period of 30 days before receiving their
exemption.
    The pilot program would also collect driver identification details
and data on

driver schedules, sleep, safety-critical events (SCEs), subjective
sleepiness ratings, and behavioral alertness for at least 180 days per
driver. The Agency requests comment on the data collection period per
driver.

VI. Management of the Pilot Program

    FMCSA has designated a project manager for the pilot program. FMCSA
would develop the applications, agreements, and forms to be used by
interested carriers and potential study group members. Participating
carriers would be announced publicly.
    Eligibility requirements and procedural matters are discussed in
Sections VII and VIII of this notice.

VII. Eligibility Criteria To Participate

A. Motor Carriers

    To qualify for participation in the pilot program, motor carriers
must meet the following eligibility criteria:
    1. Must have proper operating authority and registration;
    2. Must have the minimum levels of financial responsibility, if
applicable;
    3. Must not be a high or moderate risk motor carrier as defined in
the Agency's Federal Register notice of ADD;
    4. Must not have a conditional or unsatisfactory safety rating;
    5. Must not have any enforcement actions within the past 3 years;
    6. Must not have a crash rate above the national average;
    7. Must not have a driver Out of Service (OOS) rate above the
national average; and
    8. Must not have a vehicle OOS rate above the national average.
    In addition, unpaid civil penalties may be grounds to be
disapproved from participating in the pilot program.
    In addition, motor carriers participating in the pilot program
would be required to meet the following requirements:
     Grant permission for drivers to participate in the Split
Duty Period Pilot Program;
     Agree to comply with all pilot program procedures;
     Grant permission for researchers to install a video-based
onboard monitoring system (OBMS) and gather records of duty status
(RODS) information for each participating driver throughout the study
duration; and
     Grant permission for drivers participating in the study to
operate under the 14-hour on-duty window exemption.

B. Study Group Drivers

    A motor carrier may not approve a driver for participation in the
pilot program if during the 2-year period immediately preceding the
date of participation, the covered driver:
    1. Had his or her license suspended, revoked, cancelled or has been
disqualified for a conviction of one of the disqualifying offenses
listed in to 49 CFR 383.51; or
    2. Had any conviction for a violation of State or local law
relating to motor vehicle traffic control (other than parking
violation) arising in connection with any traffic crash and have no
record of a crash in which he/she was determined to be at fault.
    In addition, drivers would be required to:
     Operate a CMV as their main source of employment;
     Have a valid CDL;
     Maintain a valid medical certificate from a healthcare
professional on the Agency's National Registry of Certified Medical
Examiners while participating in the pilot program;
     Have the employer's approval for participation in the
study;
     Operate a property-carrying vehicle, not a passenger-
carrying vehicle;
     Agree to the release of specific information to FMCSA for
purposes of the pilot; and
     Agree to study procedures, including the use of
actigraphs, RODS, and video-based OBMS.

VIII. Process To Apply To Participate

A. Motor Carriers

     Visit the pilot program website and complete an electronic
application with screening questionnaire, which will request the
following details, at a minimum: Name, job title, carrier information,
company name, and carrier size. The carrier must grant permission for
OBMS equipment to be temporarily installed in the vehicles of
participating drivers, and for drivers to use the study-provided system
for recording HOS during the data collection period.
     The carrier's representative must acknowledge that all
driver data, to include OBMS video, driving data, sleep data, and
performance data, must remain confidential and will not be shared with
the company. The exception to this is RODS data for properly recording
a driver's HOS.

B. Study Group Drivers

     Visit the pilot program website and complete an electronic
application and screening questionnaire, which will request the
following details, at a minimum: Name, contact information, Medical
Certification expiration date, CDL status, typical operation type
(solo, team, or slip seat), location of their home terminal, type of
truck they regularly drive, and whether they currently use paper or
electronic HOS logs.
     Participate in a phone call with a member of the research
team to confirm interest and eligibility.
     Obtain carrier permission to participate (unless the
individual is an independent owner operator).
     Provide written, informed consent after a briefing session
on data collection techniques and methods.

IX. Data Collection Plan

    Details of the data collection plan for this pilot program are
subject to change based on comments to the docket and further review by
analysts. Information to be collected from each participating carrier
and driver before the pilot program begins (during the application
phase) are discussed in Section VIII of this notice. Participating
drivers will drive an instrumented vehicle (instrumented by the
research team with a study-provided OBMS) for up to 90 days. During a
pre-study briefing, participants will receive a study-provided
smartphone (installed with a variety of data collection applications),
as well as a wrist actigraphy device.\1\ Participants whose vehicles
are not already equipped with a compatible electronic logging device
(ELD) will be provided with an approved ELD application (installed on
study-provided equipment). At a minimum, FMCSA will gather the
following data during the study:
---------------------------------------------------------------------------

    \1\ Participants will wear wrist actigraphy devices (similar to
commercially available smart fitness watches) throughout their time
in the study. Actigraphy is a minimally obtrusive, validated
approach to assessing sleep/wake patterns.
---------------------------------------------------------------------------

     RODS data, to evaluate duty hours and timing, driving
hours and timing, rest breaks, off-duty time, and restart breaks.
     OBMS data, to evaluate driving behaviors, SCEs (crashes,
near-crashes, and other safety-related events), reaction time, fatigue,
lane deviations, and traffic density (as discerned from viewpoints of
the multiple cameras), road curvature, and speed variability.
     Roadside violation data (from carriers and drivers, as
well as the Commercial Driver's License Information System (CDLIS)),
including vehicle, duty status, hazardous materials, and cargo-related
violations (contingent upon inspections).
     Wrist actigraphy data, to evaluate total sleep time, time
of day sleep was taken, sleep latency, and intermittent wakefulness.

     Psychomotor Vigilance Test (PVT) \2\ data, to evaluate
drivers' behavioral alertness based on reaction times.
---------------------------------------------------------------------------

    \2\ For this study, drivers will be required to complete daily
iterations of a brief PVT, a 3-minute behavioral alertness test
which measures drivers' alertness levels by timing their reactions
to visual stimuli.
---------------------------------------------------------------------------

     Subjective sleepiness ratings, using the Karolinska
Sleepiness Scale (KSS),\3\ to measure drivers' perceptions of their
fatigue levels.
---------------------------------------------------------------------------

    \3\ The KSS is a 9-point Likert-type scale ranging from
``extremely alert'' to ``extremely sleepy'' and has been widely used
in the literature as a subjective assessment of alertness.
---------------------------------------------------------------------------

     Sleep logs, in which drivers will document when they are
going to sleep, when they wake up, and whether they are using the
sleeper berth.
     Pause logs, in which drivers will document their reason
for pausing their 14-hour on-duty window (e.g., driver felt fatigued,
driver encountered traffic, driver encountered detention delay) and
their activities during their pause (e.g., sleeping, exercising,
eating, leisure).
    Other information that may be needed will also be collected through
the participating carrier. Every effort will be made to reduce the
burden on the carrier in collecting and reporting this data.

X. Paperwork Reduction Act

    The pilot program will require participating motor carriers to
collect, maintain, and report to FMCSA certain information about their
drivers who are participating in the pilot program. This will include
identifying information and safety performance data for use in
analyzing the drivers' safety history. The Agency will develop forms to
promote uniformity in the data collected by the pilot carriers.
    The Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3501-3520)
prohibits agencies from conducting information collection (IC)
activities until they analyze the need for the collection of
information and how the collected data will be managed. Agencies must
also analyze whether technology could be used to reduce the burden
imposed on those providing the data. The Agency must estimate the time
burden required to respond to the IC requirements, such as the time
required to complete a particular form. The Agency submits its IC
analysis and burden estimate to the Office of Management and Budget
(OMB) as a formal information collection request (ICR); the Agency
cannot conduct the information collection until OMB approves the ICR.
    Because certain aspects of this pilot program--such as the content
of forms and reports--have not been finalized, the Agency is not
publishing possible IC burden data at this time. A separate Federal
Register Notice will be posted taking additional comments on the ICR,
once developed.

X. Removal From the Program

    FMCSA reserves the right to remove any motor carrier or driver from
the pilot program for reasons related to, but not limited to, the
failure to meet all program requirements or a determination of
increased safety concerns. FMCSA reserves the right to terminate the
pilot program at any time if there is evidence of increased safety risk
by carriers and/or drivers participating in the pilot program.

XI. Request for Public Comments

    Instructions for filing comments to the public docket are included
earlier in this notice. FMCSA seeks information in the following areas,
but responses need not be limited to these questions:
    1. Are any additional safeguards needed to ensure that the pilot
program provides a level of safety equivalent to that without the 14-
hour on-duty window pause exemption?
    2. Are the data collection efforts proposed for carriers and
drivers so burdensome as to discourage participation?
    3. Should team drivers be allowed to participate in the pilot
program? Would there be additional considerations for team drivers?
    4. What additional factors, such as gender, geographic location,
age, operating types, or driver experience, should be considered when
selecting participants to ensure a representative sample is achieved?
    5. Is the estimated sample size of 200-400 drivers sufficient to
gain statistically significant findings over a period of up to 3-years?
Is a 6 to12-month period of participation by individual drivers
sufficient to collect data?
    6. Is a 180-day baseline period sufficient for comparison of driver
performance between participating drivers in a control group operating
under the current regulations against individuals operating with the
exemption allowing the split duty option?
    7. Would there need to be considerations for carriers currently
utilizing OBMS or other safety systems that may involve coaching? For
example, should a participating carrier be required to halt utilization
of coaching techniques for drivers participating in the pilot program
to ensure bias is minimized across the sample?
    8. Should FMCSA consider metrics other than the following when
developing the data collection plan: Crashes, safety critical events
(e.g., speeding, lane deviation, hard braking), fatigue levels, driver
distraction, vehicle miles traveled?
    9. What other potential data collection tools should FMCSA use for
the pilot program in addition to video-based onboard monitoring
systems, actigraphs, PVTs, sleep logs, and driver health/background
information?

James A. Mullen,
Deputy Administrator.
[FR Doc. 2020-19511 Filed 9-2-20; 8:45 am]
BILLING CODE 4910-EX-P