[Federal Register Volume 84, Number 145 (Monday, July 29, 2019)]
[Proposed Rules]
[Pages 36552-36559]
[FR Doc No: 2019-15963]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 383

[Docket No. FMCSA-2018-0332]
RIN 2126-AC23

Commercial Driver's License Out-of-State Knowledge Test

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

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The FMCSA proposes to allow driver applicants to take the
commercial driver's license (CDL) general and specialized knowledge
tests in a State (the testing State) other than the applicant's State
of domicile. Under this proposed rule, a State would not be required to
offer the knowledge tests to out-of-State applicants. However, if the
testing State elects to offer the knowledge tests to these applicants,
it would transmit the results to the State of domicile, which would be
required to accept the results. Because this proposal would not change
the existing standards for administration of the knowledge tests, the
Agency concludes it would have no detrimental impact on safety.

DATES: Comments on this notice must be received on or before September
27, 2019.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2018-0332 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments, including collection of information comments for the Office
of Information and Regulatory Affairs, Office of Management and Budget
(OMB).

FOR FURTHER INFORMATION CONTACT: Nikki McDavid, Chief, Commercial
Driver's License Division, Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE, Washington, DC 20590-0001 by telephone at
202-366-0831 or by email<EMAIL_ADDRESS>If you have questions
on viewing or submitting material to the docket, contact Docket
Services, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2018-0332), indicate the specific section of
this document to which each section applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or 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 that FMCSA can contact you if there are questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2018-0332, 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 on 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 and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
    Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act, CBI is
exempt from public disclosure. If you have CBI that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Accordingly, please mark each page of your
submission as ``confidential'' or ``CBI.'' Submissions designated as
CBI and meeting the definition noted above will not be placed in the
public docket of this NPRM. Submissions containing CBI should be sent
to Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001. Any commentary that FMCSA
receives which is not specifically designated as CBI will be placed in
the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0332, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m., ET, Monday through Friday, except
Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

D. Waiver of Advance Notice of Proposed Rulemaking

    Under the Fixing America's Surface Transportation Act, Public Law,
114-94 (FAST Act), FMCSA is required to publish an advance notice of
proposed rulemaking (ANPRM) or conduct a negotiated rulemaking ``if a
proposed rule is likely to lead to the promulgation of a major rule''
(49 U.S.C. 31136(g)(1)). As this proposed rule is not likely to lead to
the promulgation of a major rule, the Agency is not required to issue
an ANPRM or to proceed with a negotiated rulemaking.

II. Executive Summary

Purpose of the Regulatory Action

    To promote further flexibility in the CDL issuance processes, FMCSA
proposes to allow driver applicants to take the CDL knowledge tests
required by 49 CFR 383.25(a)(3), 383.25(a)(5), and 383.95(c)(1) and
(4), in any State (the testing State), when that State is other than
the applicant's State of domicile. Under this proposed rule, the
testing State would transmit the driver applicant's knowledge testing
results to the State of domicile. The NPRM applies to the general
knowledge test for the CLP, as well as specialized knowledge tests for
the passenger (P), school bus (S), tank vehicle (N), double/triple
trailer (T), and hazardous materials (H) endorsements, therefore the
testing state may be transmitting more than one test result. The State
of domicile would be required to accept the results of the knowledge
test(s) in fulfillment of the applicant's testing requirements, as long
as all other requirements under 49 CFR 383.71 have been met. The
purpose of the proposal is to facilitate a driver applicant's ability
to take the knowledge test(s) outside the State of domicile, while
maintaining the ``one driver/one license/one record'' requirement
described below. It would also make the knowledge testing process more
consistent with the skills testing process, which may already be
conducted outside the State of domicile, with the test results required
to be sent back to the domicile State (49 CFR 383.79(a)) and the
license issued by the domicile State. Because this proposal would not
change the standards for administration of the knowledge tests, the
Agency concludes it would have no detrimental impact on safety.

Costs and Benefits

    FMCSA evaluated the potential for the proposed rule to result in
incremental costs and benefits. The Agency determined that the proposed
rule is not a significant regulatory action as defined in Executive
Order (E.O.) 12866 or within the meaning of DOT regulatory policies and
procedures. The proposed rule may result in costs for States to adapt
procedures or information systems to accept out-of-State knowledge test
results. Increasing the flexibility of driver applicants to take a
knowledge test in any State may reduce driver costs in terms of time
and travel expenditures associated with returning to their State of
domicile. Improving access to training programs that best suit drivers'
needs may also increase the number of driver applicants and positively
impact both the supply and skill level of CDL holders. However, the
Agency is unable to quantify these potential impacts, for reasons which
are discussed further below in section IX.

III. Legal Basis for the Rulemaking

    This proposed rule is based on the broad authority of the
Commercial Motor Vehicle Safety Act of 1986, as amended (CMVSA) (Pub.
L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313); the
Motor Carrier Safety Act of 1984, as amended (MCSA) (Pub. L. 98-554,
Title II, 98 Stat. 2832, 49 U.S.C. 31136); and the Motor Carrier Act of
1935, as amended (MCA) (chapter 498, 49 Stat. 543, 49 U.S.C. 31502).
    The CMVSA, implemented in 49 CFR parts 383 and 384, provides that
``[a]fter consultation with the States, the Secretary of Transportation
shall prescribe regulations on minimum uniform standards for the
issuance of commercial drivers' licenses and learner's permits by the
States . . .'' (49 U.S.C. 31308). More specifically, the statute
requires that: An individual may have only one CLP at a time;
applicants must first pass a knowledge test that complies with minimum
standards prescribed by the Secretary; and the CLP document must have
the same information and security features as the CDL (49 U.S.C. 31302,
31308(2)-(4)). Additionally, 49 U.S.C. 31309(b) requires that a
driver's record must be created for each CLP holder in the Commercial
Driver's License Information System (CDLIS). Section 31311(a)(12)(A)
requires that the State issue a CDL only to drivers domiciled in that
State. This NPRM proposes to establish procedures for the issuance of
CLPs by the State of domicile when the applicant takes and passes the
knowledge test required by 49 CFR 383.25(a)(3) in a State other than
the applicant's State of domicile.
    The MCSA, which confers authority to the Secretary of
Transportation to

regulate drivers, motor carriers, and commercial motor vehicles (CMVs),
requires the Secretary to ``prescribe regulations on commercial motor
vehicle safety.'' (49 U.S.C. 31136(a)). At a minimum, the regulations
shall ensure that: (1) CMVs are maintained, equipped, loaded, and
operated safely; (2) the responsibilities imposed on operators of CMVs
do not impair their ability to operate the vehicles safely; (3) the
physical condition of operators of CMVs is adequate to enable them to
operate the vehicles safely; (4) the operation of CMVs does not have a
deleterious effect on the physical condition of the operators; and (5)
CMV drivers are not coerced to operate a CMV in violation of a
regulation promulgated under 49 U.S.C. 31136(a) or chapters 51 and 313
of title 49. This proposed rule, like all of the Agency's CDL
regulations, is based in part on the requirements of 49 U.S.C.
31136(a)(1) and (2) that CMVs be ``operated safely'' and that ``the
responsibilities imposed on [CMV drivers] do not impair their ability
to operate the vehicles safely.'' The changes to 49 CFR part 383
proposed in this rule are intended to facilitate drivers' ability to
choose CMV training that best suits their needs. This NPRM does not
directly address medical standards for drivers (49 U.S.C. 31136(a)(3))
or possible physical effects caused by operating a CMV (49 U.S.C.
31136(a)(4)). The Agency does not anticipate that this proposal would
result in the coercion of CMV drivers (49 U.S.C. 31136(a)(5)).
    The MCA authorized the Secretary of Transportation (Secretary) to
prescribe requirements for the ``qualifications . . . of employees'' of
for-hire and private motor carriers (49 U.S.C. 31502(b)). This rule,
like all the Agency's CDL regulations, is based in part on that
authority and is intended to ensure the qualifications of individuals
who obtain a CLP.
    Additionally, FMCSA is required to consider ``costs and benefits''
of any regulations prescribed under the authority of the MCSA or the
MCA (49 U.S.C. 31136(c)(2)(A), 31502(d)). Those factors are addressed
below.
    Finally, the Administrator of FMCSA is delegated authority under 49
CFR 1.87(e)(1), (f) and (i) to carry out the functions vested in the
Secretary by 49 U.S.C. chapters 313, 311, and 315, respectively, as
they relate to CMV operators, programs, and safety.

IV. Background

    The purpose of the CMVSA was twofold: (1) To improve highway safety
by ensuring that drivers of large trucks and buses were qualified to
operate those vehicles, and (2) to remove unsafe, unqualified drivers
from our Nation's highways. As noted above, the CMVSA furthered these
goals by imposing minimum CDL licensing standards and requiring States
to comply with them in order to avoid the withholding of certain
Federal funds (49 U.S.C. 31314). Central to this legal framework was
the ``domicile requirement,'' which mandated that ``the State may issue
commercial drivers' licenses only to those persons who operate or will
operate commercial motor vehicles and are domiciled in the State''
[emphasis added] (49 U.S.C. 31311(a)(12)(A)). The implementing
regulation provides that ``no person may legally operate a CMV unless
such person possesses a CDL . . . issued by his/her State of
jurisdiction or domicile.'' (49 CFR 383.23(a)(2)). Congress enacted the
domicile requirement, referred to here as the ``one driver/one license/
one record'' principle, as a means of preventing drivers from masking
traffic violations or other disqualifying offenses in one State by
applying for and receiving a ``new'' commercial license in another
State.
    Following Congress's enactment of amendments to 49 U.S.C. chapter
313, FMCSA published a final rule to implement those changes,
``Commercial Driver's License Testing and Commercial Learner's Permit
Standards,'' on May 9, 2011 (2011 Final Rule) (76 FR 26854). The 2011
Final Rule added 49 CFR 383.79 to the Federal Motor Carrier Safety
Regulations (FMCSRs), which, as noted above, provides that a person who
holds a CLP would be able to take the CDL skills test outside of his/
her State of domicile. The testing State would then send the skills
test results to the State of domicile, which would be required to
accept the results. The issue of knowledge testing outside the State of
domicile was not raised during the 2011 rulemaking.
    On October 13, 2016, FMCSA published ``Commercial Driver's License
Requirements of the Moving Ahead for Progress in the 21st Century Act
(MAP-21) and the Military Commercial Driver's License Act of 2012''
(2016 Final Rule) (81 FR 70634). The 2016 Final Rule allows, but does
not require, a State to accept applications from active duty military
personnel who are stationed in that State, as well as administer the
knowledge and skills tests for a CLP or CDL, including, as applicable,
specialized knowledge tests for endorsements. States that choose to
accept such applications are required to transmit the test results
electronically to the State of domicile of the individual. The State of
domicile may then issue the CLP or CDL on the basis of those test
results.
    In January 2017, the American Trucking Associations (ATA) requested
regulatory guidance clarifying that State Driver Licensing Agencies
(SDLAs) may accept the results of knowledge tests taken in another
State to ease the travel burden on driver applicants attending a truck
driver training school outside their State of domicile. The Agency
responded to ATA's request by publishing ``Commercial Driver's License
Standards: Regulatory Guidance Concerning the Issuance of Commercial
Learner's Permits'' on August 3, 2017 (August 2017 Guidance) (82 FR
36101).
    The August 2017 Guidance, which is consistent with the 2016 Final
Rule, is predicated on the existence of an agreement between the
testing State and State of domicile prior to the general knowledge test
being administered by the testing State. It also emphasizes that the
responsibility for compliance with all requirements of 49 CFR 383.71
and 383.73 remains with the State of domicile. FMCSA also stated that
the guidance should not be construed to allow a State to issue a CLP or
CDL to an individual who is not domiciled in that State. If this NPRM
results in the publication of a final rule, the August 2017 Guidance
would be obsolete at that point and would be rescinded.
    The procedure for transmitting skills test results between States
is already in place as a result of the 2011 Final Rule. To facilitate
States' compliance with the 2011 Final Rule, the American Association
of Motor Vehicle Administrators (AAMVA) developed two web-based systems
for the electronic transmission of skills test results: The Commercial
Skills Test Information Management System (CSTIMS) and the Report Out-
of-State Test Results (ROOSTR). AAMVA continues to manage these systems
and makes them available to the States at no charge. All States
currently use one of these two systems to transmit or receive skills
test results. After the publication of the August 2017 Guidance, AAMVA
modified each of these systems to also allow transmission of the
knowledge test results.
    FMCSA's informal dialogue with SDLA personnel in early 2018
revealed that no State has yet opted to act pursuant to the August 2017
Guidance. Primary reasons cited were the need for enabling legislation
by the individual State legislatures and the fact that such legislation
was not likely to be forthcoming without definitive Federal regulatory
requirements. Additionally, some States indicated they were

focusing their limited resources on implementing other Federal
requirements.
    In July 2018, Secretary of Transportation Elaine L. Chao received a
letter from 19 members of Congress requesting that FMCSA enact
regulations requiring a State of domicile to accept the results of a
knowledge test administered by another State in which the applicant
received training. The letter, which is available in the docket of this
rulemaking, cited a growing trend within the motor carrier industry to
develop in-house central training sites to recruit and train new
drivers from across the country. The letter further explained that
these applicants are often unable to afford the financial burden
associated with the travel requirement back to the State of domicile,
from the State in which training takes place, in order to take the
knowledge test and obtain the CLP. Finally, the letter emphasized that
such a rule would not undermine the ``one driver/one license/one
record'' principle, as the State of domicile would still be required to
issue the credential. This NPRM responds to the concerns raised in the
July 2018 Congressional correspondence.

V. Discussion of Proposed Rulemaking

    This proposal would modify 49 CFR 383.79(a)(1) and (2) by
permitting a State to administer the knowledge test(s) to an out-of-
State applicant, and by requiring the State of domicile to accept those
knowledge testing results. Under the proposed rule, a State would not
be required to offer knowledge testing to out-of-State applicants. This
approach is consistent with the current language of 49 CFR
383.79(a)(1), which permits, but does not require, a State to
administer the skills test to out-of-State driver applicants who obtain
training in that State. The NPRM provides that, where a State does
elect to administer a knowledge test to out-of-State applicants, the
State must administer that test in accordance with the current
standards set forth in subparts F, G, and H of 49 CFR part 383. These
include: Testing requirements for specific vehicle groups and
endorsements, general and specialized areas of knowledge that must be
tested, and testing manuals and methods. However, under the proposal,
out-of-State applicants would not be required to obtain knowledge
training in the testing State.
    The Agency proposes to include all required knowledge testing
within the scope of this proposal, in order to avoid a situation in
which a driver applicant may take the general knowledge test out of
State, but must return to their State of domicile to take a specialized
knowledge test for one or more endorsements. For example, an individual
who wants to become a commercial bus driver must take the general
knowledge test for the CLP, as well as the knowledge test for the P
endorsement. Under the NPRM, the testing State could permit the driver
applicant to take both knowledge tests. Additionally, current CDL
holders may wish to upgrade their license by adding an endorsement;
under this proposal, they could also take the applicable knowledge
test(s) outside their Sate of domicile, if the testing State offers
that option. When a driver applicant passes the knowledge test(s), the
testing State would transmit the results to the State of domicile
through a secure, safe, electronic means, which would be required to
accept those results in fulfillment of the applicant's testing
requirements.
    FMCSA intends to simplify the task of obtaining a CLP or
endorsement for applicants wishing to take the knowledge test(s)
outside their State of domicile, while maintaining the ``one driver/one
license/one record'' requirement. In the Agency's judgment, the NPRM
would not adversely impact safety because the current standards for
administering the knowledge test(s) would not change. All driver
applicants are subject to the same pool of test questions, regardless
of the State in which testing occurs. ``States must use the FMCSA pre-
approved pool of test questions to develop knowledge tests for each
vehicle group and endorsement'' (49 CFR 383.133(b)(1)). The pool of
questions comes from AAMVA's ``2005 CDL Test System (July 2010 or newer
Version) 2005 Test Item Summary Forms.'' Each test administered must
have a set number of questions overall, with a prescribed number of
questions from each of the knowledge topic areas described in 49 CFR
383.111. Under Sec.  383.135(a), driver applicants must correctly
answer at least 80 percent of knowledge test questions to achieve a
passing score. A State of domicile, therefore, may accept knowledge
test results from a testing State and issue the CLP without concern
that different States may have different testing standards.
    Additionally, this proposal would reduce travel time and other
associated costs for applicants who choose to obtain CMV driver
training outside their State of domicile and would otherwise have to
return to their State of domicile for knowledge testing and issuance of
the physical CLP or upgraded CDL. To the extent that reducing travel
costs associated with out-of-State training increases the number of
applicants or applicant access to high-quality training programs, there
could be positive impacts on driver safety. However, the Agency does
not have data indicating such an effect. FMCSA invites qualitative or
quantitative information addressing the potential benefits of the NPRM.
    FMCSA anticipates that this proposal would require States to modify
their current CLP and CDL upgrade issuance processes to some extent.
For example, because the State of domicile would remain responsible for
ensuring compliance with 49 CFR 383.71 and 383.73, the SDLA would need
to permit the driver applicant to apply for a CLP before completing the
knowledge test in the testing State.
    After accepting knowledge test results from the testing State, the
State of domicile would issue the CLP or endorsement to the applicant
in accordance with current requirements set forth in 49 CFR part 383.
Under the ``one driver/one license/one record'' requirement, a State
could not issue a CLP or endorsement to an individual who is not
domiciled in that State; only the State of domicile may create the
Commercial Driver's License Information System (CDLIS) driver record
and issue the physical CLP (with a P, S, or N endorsement, if
applicable \1\), or add an endorsement to a driver's existing CDL. The
State of domicile would need to establish a process for delivering the
physical CLP, or upgraded CDL, to the driver applicant in other than
the State of domicile. It would be up to the State of domicile to
determine method(s) of delivery that would allow the applicant to
receive the CLP or upgraded CDL.
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    \1\ Under 49 CFR 383.25(a)(5)(iv), the P, S, and N endorsements
are the only endorsements permitted on a CLP. Note that a CLP does
not require an endorsement.
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    As noted above, the process for transmitting knowledge test results
between States, through either CSTIMS or ROOSTR, is already in place.
States will need to integrate this capability into their own systems
and procedures. The Agency notes, however, that transmission of test
results through either CSTIMS or ROOSTR does not require any changes to
CDLIS.
    Finally, the Agency typically allows three years for the States to
come into compliance with regulatory changes. Would a three-year
compliance date allow sufficient time for States to accomplish changes
in their laws and procedures necessary to implement the proposed
requirements? Given that the

functionality to transmit knowledge test results currently exists in
CSTIMS and ROOSTR, could the proposed requirements be implemented
within two years? FMCSA seeks comment and supporting data addressing
the length of time States would need to comply with the changes
proposed in the NPRM.

VI. Questions

    The Agency requests that commenters address the questions below,
but also welcomes comments or questions on any other issues related to
this proposal.
    1. To what extent will SDLAs need to adapt existing procedures and
processes to receive out-of-State knowledge testing results and
remotely deliver the physical CLP or upgraded CDL? What are the costs
associated with making these changes?
    2. What additional State implementation concerns are raised by
today's proposal?
    3. Would two years, or three years, allow SDLAs sufficient time to
achieve compliance with the proposed requirement to accept any out-of-
State knowledge test results? Please explain the basis for your
preferred compliance date.
    4. If this proposal is finalized, would your SDLA offer knowledge
testing to out-of-State CLP applicants or CDL holders wishing to add an
endorsement to their license? Why or why not?
    5. Would the proposed changes allow applicants who take driver
training outside their State of domicile to obtain a CLP or upgraded
CDL more efficiently? If so, please provide specific examples of time
or cost savings that may accrue if the proposed changes were adopted.

VII. International Impacts

    The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.

VIII. Section-by-Section Analysis

    The text of 49 CFR 383.79 would be revised by adding new paragraph
(a)(1) permitting a State to administer the general knowledge test,
and/or specialized knowledge tests, to a CLP or endorsement applicant
who is to be licensed in his or her State of domicile and requiring the
testing State to transmit the knowledge testing results to the
applicant's State of domicile. New paragraph (a)(2) would require the
CLP applicant's State of domicile to accept knowledge testing results
from the testing State in fulfillment of the applicant's testing
requirements under Sec.  383.71 and the State's test administration
requirements under Sec.  383.73. Current paragraph (a) would be re-
designated as new paragraph (b); current paragraph (b) would be re-
designated as new paragraph (c). Section 383.79 would be re-titled
``Knowledge and driving skills testing of out-of-State applicants;
knowledge and driving skills testing of military personnel'' to reflect
the proposed revisions to the current regulatory text, as summarized
above.

IX. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures

    FMCSA evaluated the potential impacts of the proposed rule and
determined that it is not a significant regulatory action under section
3(f) of Executive Order 12866, Regulatory Planning and Review, as
supplemented by E.O. 13563 (76 FR 3821, January 21, 2011). Accordingly,
the Office of Management and Budget has not reviewed it under that
Order. The proposed rule also is not significant within the meaning of
DOT regulatory policies and procedures (DOT Order 2100.6 dated December
20, 2018). The Agency's analysis follows.
Baseline
    The Agency's previous regulatory guidance on 49 CFR part 383--
Commercial Driver's License Standards Section 383.73 State Procedures
(82 FR 36101 (Aug. 3, 2017)) clarifies that Section 383.73 does not
prohibit States from accepting and processing CLP applications from
out-of-State applicants (e.g., individuals who are not domiciled in the
State but who receive training there) and administering the general
knowledge test to such applicants, provided there is agreement between
the testing State and the applicant's State of domicile. In September
2018, AAMVA made available to States the capability to receive
knowledge test results from other States within CSTIMS and ROOSTR. As
noted above, to date, no States are using the capability to transmit
out-of-State knowledge test results under the existing guidance.
    The new capability allows the testing State to enter knowledge
testing results in the web-based system. States that opt to receive
email notifications will receive notification that an applicant in
their State has taken a knowledge test. The State of domicile is then
responsible for posting the results to the driver record.
    States currently access CSTIMS and ROOSTR through different
platforms and use different procedures to receive the results of skills
tests taken out of State. These existing systems and procedures will
impact the manner in which States comply with the proposed rule and
receive out-of-State knowledge test results.
Impact of the Proposed Rule
    If this proposed rule results in a final rule, FMCSA would rescind
the current guidance, which otherwise expires on August 3, 2022. The
proposed rule would allow, but not require, States to administer
general and specialized knowledge tests to out-of-State drivers
applying for a CLP, and specialized knowledge tests to CDL holders
wishing to upgrade their license by adding an endorsement. However, the
proposed rule would require the State of domicile to accept results
from the testing State. Therefore, all States would have to be capable
of accepting knowledge testing results transmitted from the testing
State. FMCSA also notes that, as explained above, the proposed rule
would permit out-of-State knowledge testing for all endorsements, in
contrast to the current guidance, which addresses only the general
knowledge test required under 49 CFR 383.25(a)(3). That guidance was
issued in response to stakeholders' request for clarification that the
general CLP knowledge test could be taken out of State.
    The State of domicile would need to allow the individual to apply
for a CLP or endorsement prior to taking the applicable knowledge
test(s) in the testing State. States also may have to develop
procedures for receiving results of the knowledge test(s) from out of
State. The extent of changes needed will depend on the existing
platform and current processes for accepting the skills test results.
For example, States that implemented a manual process for receiving
skills test results may use a similar process to receive knowledge test
results. On the other hand, States that currently receive skills test
results automatically may need only minor incremental programming
changes to add the ability to receive knowledge test results in the
same manner.
Costs
    Costs to implement changes to State licensing procedures and
information technology (IT) systems may include upfront (onetime) and
ongoing costs (or

cost savings) for each entity. Onetime costs may involve State
personnel time to plan, develop practices, implement system changes,
revise outreach materials, and train staff. Associated onetime IT
system changes may involve programming, testing, and training costs
which may include State or contractor personnel time. The extent to
which these activities would be incremental costs attributable to the
rule will depend in part on the ability of States to coordinate changes
with other needed maintenance and revisions.
    Once able to receive results of out-of-State knowledge testing
States may also incur ongoing incremental costs (or cost savings)
associated with the new procedures, depending on the specific changes.
For example, a manual procedure would impact State personnel time in
the State of domicile each time a testing State transmits test results.
There may also be some transfer of costs from one State to another
depending on the specific procedures that States adopt for remote
delivery of the physical CLP or upgraded CDL. These effects would
depend on the extent to which States elect to administer knowledge
tests to out-of-State drivers, thus necessitating that the State of
domicile receive the test results and issue a CLP or upgraded CDL.
    Given the interest from members of Congress and the ATA, the Agency
expects that at least some States would allow out-of-State drivers to
take the knowledge test(s) to better accommodate truck and bus driver
schools operating a centralized training model within their boundaries.
In comments submitted on the Commercial Driver's License Requirements
of the Moving Ahead for Progress in the 21st Century Act and the
Military Commercial Driver's License Act of 2012 (Docket number: FMCSA-
2016-0051), ATA discussed training schools that use a centralized
training model. According to ATA, under this model, these schools
incentivize students through discounted tuition and potential
employment to travel to another State for CDL training. The July 2018
Congressional letter to Secretary Chao, discussed above, also noted a
trend toward central training sites to recruit and train new drivers
from across the country.
    For the 34 States that have fully adopted CSTIMS, FMCSA estimates
that on average approximately 22,000 applicants take the skills test
out of State annually (out of an approximate 205,000 who take the test
and pass in these States). The number of skills tests taken in States
that use limited CSTIMS functions or that use ROOSTR are not tabulated
or reported. Some States may also elect to offer out-of-State knowledge
testing to these applicants. However, since ongoing costs are likely to
be highly State-specific and the Agency has no basis to estimate how
many States would allow out-of-State drivers to take the knowledge
test(s), the Agency is unable to quantify these costs. The Agency
invites comments on the level of interest among the States in
permitting out-of-State drivers to take the knowledge test(s) and
anticipated State-level costs.
    Finally, potential driver applicants may experience minor cost
savings (e.g., opportunity costs of time and travel) depending on how
they would obtain knowledge training, take the knowledge test, and
obtain a CLP in the absence of the proposed rule. For example, the ATA
comments and the 2018 Congressional letter note that centralized
training schools recruit candidates from all over the nation who then
must incur the time and expense of returning to their State of domicile
to take the knowledge test and obtain their CLP. However, the Agency
does not have data on the amount and value (opportunity cost) of that
time and travel expense in comparison to the baseline level of
expenditures.
Benefits
    As noted above, all States must use the FMCSA preapproved pool of
test questions to develop knowledge tests for each vehicle group and
endorsement. Because the State in which a driver takes the knowledge
test does not change the potential content covered, the Agency does not
anticipate that this NPRM would adversely impact safety. The Agency
does not have data on the impact the flexibility to take the knowledge
test(s) out of State will have on the pool or skill level of CDL
holders. In their 2016 comments, ATA touts the success of the
centralized training model in terms of favorable knowledge and skills
test pass rates. To the extent this proposal would further accommodate
the centralized training model, the Agency invites comment and
supporting data addressing the safety impact of the NPRM.
Uncertainties
    There are a number of uncertainties associated with the Agency's
regulatory evaluation, primarily related to data limitations. Due to
the variety of State-based CDL IT systems and procedures, the extent to
which these would need to be modified to comply with the proposed rule
will vary by State. The Agency does not have data on either the
approach each State will take to interface with the CSTIMS/ROOSTR
capability to receive knowledge test results or their intent to offer
knowledge tests to out-of-State applicants. In addition, the number of
applicants who will take knowledge tests out of State, and the costs
saved from reducing travel time and cost under the proposed rule, is
not known.
    In considering these data limitations, the Agency determined that
more or better information to quantify costs and benefits would not
likely change its selection of the regulatory alternative (compared to
the ``no action'' alternative). Also, the proposed rule represents a
logical extension to the existing requirement to accept skills test
results administered out of State and, given the capabilities already
in place, only relatively minor changes may be needed for compliance.
Therefore, in the interest of providing flexibility to the CDL program
in a relatively short timeframe, the Agency has not pursued a data
collection effort to obtain estimates from the States to fill in these
data gaps.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    This proposed rule is considered an E.O. 13771 deregulatory action.
The Agency cannot estimate the cost savings; however, the cost savings
are discussed qualitatively in the rule's economic analysis.

C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121, 110 Stat. 857) requires Federal agencies to
consider the effects of the regulatory action on small business and
other small entities and to minimize any significant economic impact.
The term ``small entities'' comprises small businesses and not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of fewer than 50,000 (5 U.S.C. 601(6)). Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
    As described above, this proposal, if issued as a final rule, may
result in necessary expenditures by States to receive knowledge testing
results from applicants who take the knowledge test(s) outside their
State of domicile. Neither States nor applicants are small entities. In
addition, the CDL Program Implementation (CDLPI) grant program

provides financial assistance to States to achieve compliance with the
requirements of 49 CFR parts 383 and 384. Allowable costs under the
CDLPI grant awards include, but are not limited to, expenses for
computer hardware and software, publications, testing, personnel,
training, and quality control.
    As discussed above, FMCSA has considered whether the proposed rule
would have a significant economic impact on a substantial number of
small entities. Consequently, I certify that the proposed action would
not have a significant economic impact on a substantial number of small
entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning the
provisions or options for compliance, please consult the FMCSA point of
contact, Ms. Nikki McDavid, listed in the For Further Information
Contact section of this proposed rule.
    Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any one year. Though this proposed rule would
not result in such an expenditure, the Agency does discuss the effects
of this rule in this preamble.

F. Paperwork Reduction Act

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

G. E.O. 13132 (Federalism)

    A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' This proposal would amend the
requirements in 49 CFR part 383 for the issuance of CLPs under
specified circumstances. The Agency's commercial licensing regulations
and requirements for State compliance, set forth in parts 383 and 384,
do not have preemptive effect. States' participation in the CDL program
is voluntary; States may withdraw at any time, although doing so will
result in the loss of certain Federal aid highway funds pursuant to 49
U.S.C. 31314. Because this proposal would not significantly amend
requirements already in effect for participating States, FMCSA has
determined that it would not have a substantial direct effect on the
States, on the relationship between the Federal and State governments,
or on the distribution of power and responsibilities among the various
levels of government.
    However, the Agency recognizes that, as a practical matter, this
NPRM could have some impact on the States' current processes for
issuing CLPs. Accordingly, by letters sent on January 8, 2019, FMCSA
offered officials of the National Governors Association (NGA), the
National Conference of State Legislatures (NCSL), and AAMVA the
opportunity to meet with FMCSA to discuss any questions or concerns
about the impact of the proposal on current SDLA processes. Copies of
those letters are available in the docket of this rulemaking. None of
the groups requested a meeting in response to the Agency's invitation.

H. E.O. 12988 (Civil Justice Reform)

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

I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the effect of the regulation on the environmental health
and safety of children. The Agency determined this proposed rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.

J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.

K. Privacy

    Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. The Agency completed a Privacy
Threshold Assessment (PTA) to assist in analyzing the new rulemaking to
determine if it creates privacy risk for individuals that could require
other entities to collect, use, store or share personally identifiable
information (PII), or deploy technologies as a result of this
rulemaking implementation. The PTA is also used to identify programs
and systems that are privacy sensitive and help determine whether
additional privacy compliance, such a PIA or System of Records Notice
(SORN), is required for a particular rulemaking or system. Based on the
preliminary adjudication of the PTA by the FMCSA Privacy Officer, this
rule does not require the collection of PII and the Agency is not
required to conduct a PIA. The PTA will be submitted to the Department
of Transportation's Privacy Officer for review and final adjudication.

L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.

N. E.O. 13175 (Indian Tribal Governments)

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

O. National Technology Transfer and Advancement Act (Technical
Standards)

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

P. Environment

    FMCSA analyzed this NPRM for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004),
Appendix 2, paragraph (s)(6) and paragraph (t)(2). The Categorical
Exclusion (CE) in paragraph (s)(6) covers regulations concerning the
requirement for States to give knowledge and skills tests to all
qualified applicants for a CDL; the CE in paragraph (t)(2) covers
regulations concerning State policies and procedures and information
systems concerning the qualification and licensing of persons who apply
for a CDL. The proposed requirements in this rule are covered by these
CEs and the NPRM does not have any effect on the quality of the
environment. The CE determination is available for inspection or
copying in the regulations.gov website listed under ADDRESSES.

List of Subjects in 49 CFR 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR
chapter 3, part 383 to read as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
1. The authority citation for part 383 continues to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502; secs.
214 and 215 of Pub. L 106-159, 113 Stat. 1748, 1766, 1767; sec.
1012(b) of Pub. L. 107-56; 115 Stat. 272, 297, sec. 4140 of Pub. L.
109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-141, 126
Stat. 405, 830; secs. 5401 and 7208 of Pub. L. 114-94, 129 Stat.
1312, 1546, 1593; and 49 CFR 1.87.

0
2. Amend Sec.  383.79 by:
0
a. Revising the section heading;
0
b. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c); and
0
c. Adding new paragraph (a).
    The addition and revision to read as follows:

Sec.  383.79   Knowledge and driving skills testing of out-of-State
applicants; knowledge and driving skills testing of military personnel.

    (a) CLP applicants tested out-of-State--(1) State that administers
knowledge testing. A State may administer general and specialized
knowledge tests, in accordance with subparts F, G, and H of this part,
to a person who is to be licensed in another United States jurisdiction
(i.e., his or her State of domicile). Such test results must be
transmitted electronically directly from the testing State to the State
of domicile in a direct, efficient and secure manner.
    (2) The State of domicile. The State of domicile of a CLP
applicant, or CDL holder, must accept the results of knowledge tests
administered to the applicant by any other State, in accordance with
subparts F, G, and H of this part, in fulfillment of the applicant's
testing requirements under Sec.  383.71, and the State's test
administration requirements under Sec.  383.73, if the applicant has
satisfied all other requirements of Sec.  383.71.
* * * * *

    Issued under authority delegated in 49 CFR 1.87.

    Dated: July 23, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-15963 Filed 7-26-19; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 76, Number 251 (Friday, December 30, 2011)]
[Notices]
[Pages 82295-82296]
[FR Doc No: 2011-33534]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. EL12-18-000; QF82-207-007]

Central Power & Lime LLC; Notice of Filing

December 23, 2011.
    Take notice that on December 22, 2011, Central Power & Lime LLC,
pursuant to sections 18 CFR 292.205(c) and 385.207 of the Federal
Energy Regulatory Commission's (Commission) Regulations, filed a
petition for temporary waiver of the operating standard set forth in 18
CFR 282.205(a)(1), with respect to its cogeneration facility located in
Brooksville, Florida for calendar year 2011.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as

appropriate. Such notices, motions, or protests must be filed on or
before the comment date. On or before the comment date, it is not
necessary to serve motions to intervene or protests on persons other
than the Applicant.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive email
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on January 12, 2012.

    Dated: December 21, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-33534 Filed 12-29-11; 8:45 am]
BILLING CODE 6717-01-P


Technical Support Document (TSD) Charleston West Virginia

PM2.5 State Implementation Plan (SIP) Base Year Inventory

Submitted November 2009 by the West Virginia

Department of Environmental Protection

TSD Prepared July 2010 by

Alice H. Chow

Office of Air Monitoring and Analysis, 3AP40

U.S. Environmental Protection Agency, Region 3

1650 Arch Street

Philadelphia, Pennsylvania 19103

____________________/s/________________________

Reviewed by Walter Wilkie, Associate Director

Office of Air Monitoring and Analysis, 3AP40

_______August 12, 2010__________

Date Signed

Introduction

The purpose of this document is to provide a technical summary of the
Office of Air Monitoring and Analysis (OAMA) review of the Base Year
emissions inventories submitted with the Charleston, West Virginia PM2.5
SIP by the West Virginia Department of the Environmental Protection
(WVDEP).  This review determines the approvability of the SIP Base Year
Inventory and an evaluation of the methods used.  A SIP Base Year
Inventory is the starting point from which other SIP inventories are
derived as well as serving as the benchmark for other SIP planning
activities, such as the establishment of an emissions reduction credit
program.  On January 5, 2005 the Charleston area, comprised of Kanawha
and Putnam Counties, was designated as nonattainment for the PM2.5
NAAQS. Any questions pertaining to this technical summary should be
directed to Walter K. Wilkie, Associate Director, Office of Air
Monitoring and Analysis, at<PHONE_NUMBER> or via email at   HYPERLINK
<EMAIL_ADDRESS><EMAIL_ADDRESS>.

II 	2002 SIP Base Year Inventory

	The SIP base year inventory is the primary inventory from which other
inventories (3-year cycle inventories, reasonable further progress
inventories, modeling inventories) are derived.  The Clean Air Act calls
for State, local, and Tribal agencies to ensure that the base year
inventory is comprehensive, accurate, and current for all actual
emissions.  The base year inventory includes emissions estimates from
stationary point and nonpoint sources, onroad mobile sources, and
nonroad mobile sources.  For the PM2.5 NAAQS, the pollutants to be
inventoried are PM 10, PM2.5, VOC, NOx, SO2 and NH3.  For the NAAQS,
emissions should be reported as actual annual emissions.

	In the Charleston SIP the base year used was 2002.  WVDEP provided a
point source inventory for 2002 that contained emissions for electric
generating units (EGUs) and Non-EGU sources.  There is one EGU source in
Kanawha County, and one EGU source in Putnam County.  For EGUs and
Non-EGUs WVDEP supplied data to EPA’s National Emissions Inventory
(NEI) for 2002, as required by the Consolidated Emissions Reporting Rule
(CERR). West Virginia submitted filterable PM emissions that were
augmented by MACTEC for VISTAS to develop primary PM estimates.

	For the 2002 area source emissions, WVDEP used 2002 NEI data developed
by the EPA as the starting point for the area source inventory. West
Virginia updated estimates for the Residential Fuel/Wood Combustion
categories for coal, distillate oil, natural gas, and wood from the 2002
preliminary NEI file. NH3 emissions estimates were calculated using the
Carnegie Mellon University NH3 model.

	WVDEP used a two step process to develop the Nonroad Mobile source
inventory used in this request.  First the emissions for the nonroad
source categories that are included in EPA’s NONROAD2005 Model
(NONROAD) were developed.  NONROAD estimates fuel consumption and
emissions of total hydrocarbons, carbon monoxide, nitrogen oxides,
sulfur dioxide, and particulate matter for all nonroad mobile source
categories except for aircraft, locomotives, and commercial marine
vessels (CMV).  The second step was to develop emissions that were not
contained in the NONROAD Model.  Aircraft, locomotives, and commercial
marine vessels (CMV) emission estimates submitted by WVDEP were
developed by E.H. Pechan and Associates for VISTAS.  OAMA staff reviewed
the documentation provided concerning this portion of the Nonroad
inventory and believes that it is reasonable to use these emission
estimates.

	The MOBILE6 module of the SMOKE model was used to develop the onroad
mobile source emissions estimates for NOx, NH3, SO2, PM, and VOC
emissions. MOBILE 6.2 defaults were used for the speed, vehicle age and
vehicle mix data. The 2002 vehicle miles traveled (VMT) was obtained
from the West Virginia Department of Transportation (WVDOT) and provided
along with West Virginia-specific temperature data.  Mobile emissions
values were given annually by SCC.  AQAB staff reviewed the files and
emission results.

 “Emissions Inventory Guidance for Implementation of Ozone and
Particulate Matter National Ambient Air Quality Standards (NAAQS) and
Regional Haze Regulations” EPA-454/R-05-001, August 2005


                          Incorporation by Reference
                      Docket ID No. EPA-HQ-OAR-2011-0512
                                 July 26, 2011

The contents of the following dockets are hereby incorporated by reference into and are considered to be included in, contained in and to have been placed in Docket EPA-HQ-OAR-2011-0512 (Technical Revisions for Subpart I and W of the Greenhouse Gas Reporting Rule):

   1) EPA-HQ-OAR-2008-0508 (Greenhouse Gas Mandatory Reporting)
   2) EPA-HQ-OAR-2009-0923 (Oil and Natural Gas Systems)
   3) EPA-HQ-OAR-2009-0924 (Determination of Confidential Business Information)
   4) EPA-HQ-OAR-2009-0926 (Carbon Dioxide Injection and Geologic Sequestration)
   5) EPA-HQ-OAR-2009-0927 (Additional Sources of Fluorinated Gases)
   6) EPA-HQ-OAR-2009-0925 (Corporate Parent and NAICS Code in the Greenhouse Gas Reporting Rule)
   7) EPA-HQ-OAR-2011-0417 (Mandatory Reporting of Greenhouse Gases: Petroleum and Natural Gas Systems, Subpart W:  Extension of 2011 BAMM Deadlines)

Accessing dockets:
Publicly available docket materials are available either electronically through
www.regulations.gov or in hard copy at EPA's Docket Center, Public Reading Room, EPA West
Building, Room 3334, 1301 Constitution Avenue, NW, Washington, DC 20004.  This Docket
Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays.
The telephone number for the Public Reading Room is<PHONE_NUMBER>, and the telephone
number for the Air Docket is<PHONE_NUMBER>.


included the new Rule 611 that will supersede the trade-through rule
found in the ITS Plan. Rule 611 requires a trading center to
establish, maintain and enforce written policies and procedures that
are reasonably designed to prevent trade-throughs of protected
quotations in NMS stocks. Rule 611 became effective on August 29,
2005; compliance with this rule shall begin starting on June 29,
2006. 17 CFR 242.611.
    \195\ 17 CFR 242.608(c).
    \196\ See supra note 25 and accompanying text.
---------------------------------------------------------------------------

    To provide access to quotes and orders in non-Nasdaq exchange-
listed securities displayed on the Nasdaq Exchange, the Nasdaq Exchange
must become a member of the ITS Plan prior to its operation as a
national securities exchange for trading such securities. Although
required participation in the ITS Plan is of limited duration,\197\ the
Commission believes that it is necessary until the full implementation
of Rule 611 that the Nasdaq Exchange join the ITS Plan to ensure that
the Commission's policy of protecting limit orders and providing price
protection across markets is maintained. Further, the Nasdaq Exchange
participation in the ITS Plan should ensure that regulatory
requirements are consistent across the markets for exchange-listed
securities.\198\ Nasdaq has proposed to adopt ITS rules that are
similar to the current NASD ITS Rules. The Commission notes that the
Nasdaq Exchange may have to amend its ITS rules to reflect its
participation in the ITS Plan. Any changes to its rules to implement
its participation in the ITS Plan must be filed with and approved by
the Commission prior to its commencement of operations as a national
securities exchange.
---------------------------------------------------------------------------

    \197\ See supra note 194.
    \198\ See section 11A(a)(1)(ii) of the Exchange Act; 15 U.S.C.
78k-1(a)(1)(ii).
---------------------------------------------------------------------------

    The NASD currently fulfills its obligations under Rules 602 and
603, the CTA Plan, CQ Plan, Nasdaq UTP Plan, and section 15A(b)(11) of
the Exchange Act \199\ through NASD facilities that are owned by the
NASD's subsidiary, Nasdaq. The NASD also operates the ADF for
collecting quotations and trade reports in Nasdaq securities but not
exchange-listed securities. With respect to non-Nasdaq exchange-listed
securities, the only means currently available to the NASD to fulfill
these statutory and regulatory obligations is through NASD facilities
owned by Nasdaq. Accordingly, the Commission believes that, until the
NASD has alternative means to satisfy these obligations, it cannot
complete its separation from Nasdaq and Nasdaq cannot cease to operate
as a facility of the NASD. For this reason, the Commission is
conditioning the operation of the Nasdaq Exchange, which will
automatically terminate the NASD's control of Nasdaq,\200\ on the NASD
representing to the Commission that control of Nasdaq through the
Preferred D share is no longer necessary.
---------------------------------------------------------------------------

    \199\ 15 U.S.C. 78o-3(b)(11). Section 15A(b)(11) requires the
rules of the NASD to include provisions governing the form and
content of quotations relating to securities sold OTC that may be
distributed or published by any NASD member or person associated
with such member, and the persons to whom such quotations may be
supplied.
    \200\ See supra note 25 and accompanying text.
---------------------------------------------------------------------------

    In the Original Notice, the Commission noted that the registration
of the Nasdaq Exchange has implications for the NASD and its ability to
satisfy its statutory and regulatory obligations.\201\ The Commission
further stated that the NASD must have an operational quotation and
transaction reporting facility upon the registration of the Nasdaq
Exchange. The Commission received comments on the Original Notice and
Amendment Nos. 1, 2, and 3 that raised significant concerns about how
the NASD would continue to satisfy its statutory and regulatory
obligations.\202\ In particular, one commenter expressed concern about
Nasdaq's registration as an exchange because it ``will eliminate the
only non-exchange facilities that exist for trading NMS securities.''
\203\ Therefore, this commenter believed that the Commission should
withhold approval of Nasdaq's exchange registration until a viable NASD
quotation display and trade reporting facility is in place because,
without such a facility, market makers and electronic communication
networks would essentially be mandated to become a member of the Nasdaq
Exchange to meet their regulatory obligations. Similarly, another
commenter noted that for several decades, Nasdaq has been the arm of
the NASD through which broker-dealers satisfy their regulatory
obligations for OTC transactions in NMS stocks. This commenter believed
that Nasdaq's exchange application could not be reconciled with the
requirements of the Exchange Act until after the NASD has in place
operational facilities

to permit OTC trading to continue to flourish in the U.S.\204\
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    \201\ See Original Notice, supra note 2.
    \202\ See e.g., Bloomberg 2001 Letter, Instinet Letter, Phlx
Letters, SIA Letter, supra note 15; and letters from Barry S.
Porter, Chairman, The Nasdaq Stock Market Issuer Affairs Committee,
dated August 8, 2001; and Senator Zell Miller, U.S. Senate, dated
August 16, 2001.
    \203\ See SIA Letter, supra note 15.
    \204\ See Instinet Letter, supra note 15.
---------------------------------------------------------------------------

    The Commission agrees with these commenters and is conditioning the
operation of the Nasdaq Exchange upon the ability of the NASD to
satisfy its statutory and regulatory obligations. The Commission does
not believe that it would be consistent with the Exchange Act to allow
the NASD to separate from the facilities by which it satisfies its
regulatory obligations without having alterative means to do what the
Exchange Act and the rules thereunder require. Accordingly, the Nasdaq
Exchange may not begin operating as a national securities exchange and
cease to operate as a facility of the NASD until NASD has the means to
fulfill its regulatory obligations.
    Finally, national securities exchanges must make available certain
order execution information pursuant to Rule 605 of Regulation
NMS.\205\ Current exchanges have standardized the required disclosure
mechanisms by participating in the Order Execution Quality Disclosure
Plan.\206\ The Nasdaq Exchange must join this plan before it begins
operations as an exchange.
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    \205\ 17 CFR 242.605.
    \206\ See Exchange Act Release No. 44177 (April 12, 2001), 66 FR
19814 (April 17, 2001).
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E. Listing Requirements

1. Registration Under Section 12(b) of the Exchange Act
    Once the Nasdaq Exchange begins operations as a national securities
exchange, a security will be considered for listing on the Nasdaq
Exchange only if such security is registered pursuant to section 12(b)
of the Exchange Act \207\ or such security is subject to an
exemption.\208\ An issuer may register a security pursuant to section
12(b) by submitting to the Nasdaq Exchange a listing application that
provides certain required information.\209\ The Exchange will review
the listing application and, if the listing application is approved,
will certify to the Commission that it has approved the security for
listing and registration.\210\ Registration of the security will become
effective thirty days after the receipt of such certification by the
Commission or within a shorter period of time as the Commission may
determine.\211\ Once registration is effective the security is eligible
for listing on the Nasdaq Exchange.\212\
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    \207\ 15 U.S.C. 78l(b). Nasdaq has notified Commission staff of
its intent to request appropriate regulatory relief to facilitate
the efficient registration of its issuers' securities under section
12(b) of the Exchange Act. The Commission expects that any such
process would include a notice by Nasdaq to the general public and
an appropriate notice to issuers, and an opportunity for issuers to
opt out of the process.
    \208\ 15 U.S.C. 78l(c); Nasdaq Exchange Rules 4310(a) and
4320(a). Certain issuers currently listed on Nasdaq are not required
to register under section 12(g) of the Exchange Act because of
exemptions provided to foreign private issuers, Rule 12(g)3-2(b),
and insurance companies, section 12(g)(2)(G). These issuers,
however, are not similarly exempt from section 12(b) of the Exchange
Act. The Commission received one comment letter submitted on behalf
of Nissan Motor Co., Ltd., whose shares (in the form of American
Depositary Shares) are listed on Nasdaq but are exempt from
registration under section 12(g). See Nissan Letter, supra note 10.
Nissan requests that its current exemption from registration be
continued, or alternatively that it and other similarly situated
foreign private issuers be given a transition period after Nasdaq
begins operating as an exchange within which to evaluate whether to
register under section 12(b). In its response to this comment,
Nasdaq stated that it expects to submit a formal request to the
Commission pursuant to which Nasdaq will seek a three-year exemption
period for issuers such as Nissan.
    \209\ 15 U.S.C. 78l(b); Nasdaq Exchange Rules 4310(b) and
4320(b).
    \210\ See Nasdaq Exchange Rules 4310(b), 4320(b), and 4410(b);
15 U.S.C. 78l(d).
    \211\ 15 U.S.C. 78l(d).
    \212\ See Nasdaq Exchange Rules 4310(b), 4320(b), and 4410(b);
15 U.S.C. 78l(d).
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2. Initial and Continuing Listing Standards
    Nasdaq proposes that its initial and continuing listing standards
be largely the same as current NASD listing rules.\213\ Nasdaq also
proposes a transitional listing rule that would automatically qualify
for initial listing any security trading on the Nasdaq facility of the
NASD on the day prior to the Nasdaq Exchange's first day of operation
as an independent exchange.\214\ The Commission believes that these
rules are consistent with the requirements of the Exchange Act because
they would enable current Nasdaq securities to continue trading once
the Nasdaq Exchange begins operations as a national securities exchange
thus providing a continuous market for investors for these securities.
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    \213\ In Amendment No. 6, Nasdaq proposed to modify their
listing standards to reflect proposed rule changes approved by the
Commission for the NASD as follows: SR-NASD-2004-125 clarifies and
increases the transparency of the procedures associated with denying
companies initial or continued listing on Nasdaq, see Exchange Act
Release No. 52342 (August 26, 2005), 70 FR 52456 (September 2,
2005); SR-NASD-2005-153 amends the procedures for review of listing
determinations to allow for electronic delivery of documents, see
Exchange Act Release No. 53067 (January 6, 2006); SR-NASD-2004-162
establishes a fee and notice requirements for substitution listing
events for all Nasdaq issuers, except dual listed companies, see
Exchange Act Release No. 52712 (November 1, 2005), 70 FR 67511
(November 7, 2005); SR-NASD-2005-136 permits Nasdaq to issue public
reprimand letters to listed companies for certain rule violations
when a determination is made that delisting is not an appropriate
sanction, see Exchange Act Release No. 52899 (December 6, 2005), 70
FR 74392 (December 15, 2005); and SR-NASD-2005-082 clarifies the
listing standards applicable to companies in bankruptcy proceedings,
see Exchange Act Release No. 52603 (October 13, 2005), 70 FR 61163
(October 20, 2005). The Commission finds that these changes are
consistent with section 6(b)(5) of the Exchange Act for the same
reasons that the Commission approved them under section 15A(b)(6) of
the Exchange Act.
    \214\ See Amendment No. 6, supra note 12 and Nasdaq Exchange
Rule 4305.
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3. Corporate Governance Standards
    In 2003, the Commission approved a proposal to revise the NASD
rules by adding new corporate governance standards for listed issuers,
as contained in NASD Rules 4200 and 4350.\215\ These changes, which
were applied to Nasdaq-listed issuers through the NASD as a national
securities association, established enhanced requirements for audit
committees of Nasdaq-listed issuers, as mandated by the Sarbanes-Oxley
Act of 2002.\216\ In addition, these changes established new
requirements relating to the independence of the listed issuer's board
of directors and key board committees and required issuers to adopt
codes of conduct for directors, officers and employees. The corporate
governance listing standards proposed for the Nasdaq Exchange are the
same as those previously approved by the Commission for the NASD
pursuant to section 10A(m) of the Exchange Act and Rule 10A-3 and
pursuant to section 15A(b)(6) of the Exchange Act.\217\
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    \215\ See Exchange Act Release No. 48745 (November 4, 2003), 68
FR 64154 (November 12, 2003) (approving changes to the corporate
governance listing standards of the Nasdaq Stock Market, Inc. and
the NYSE).
    \216\ The Sarbanes Oxley Act, Public Law 107-204, 116 Stat. 745
(2002), established, among other provisions, section 10A(m) of the
Exchange Act, 15 U.S.C. 78j-1(m), which relates to standards for
audit committees. Rule 10A-3 under the Exchange Act, which was
adopted pursuant to section 10A(m) of the Exchange Act, directed
each national securities exchange and national securities
association to prohibit the listing of any security of an issuer
that is not in compliance with the audit committee requirements
specified in the Rule. 17 CFR 240.10A-3.
    \217\ 15 U.S.C. 78f(b)(5). Subsequent to the Commission's
approval of changes to the corporate governance listing standards
for Nasdaq-listed issuers, the NASD refined those standards. See
Exchange Act Release Nos. 49060 (January 12, 2004), 69 FR 2954
(January 21, 2004); 49901 (June 22, 2004), 69 FR 38944 (June 29,
2004); 49903 (June 22, 2004), 69 FR 38941 (June 29, 2004); 50573
(October 20, 2004), 69 FR 62493 (October 26, 2004); 51221 (February
17, 2005), 70 FR 9122 (February 24, 2005); and 51420 (March 23,
2005), 70 FR 15968 (March 29, 2005). In Amendment No. 6, Nasdaq
proposed to modify Nasdaq Exchange Rule 4350(k) to reflect a
proposed rule change approved by the Commission for the NASD. This
proposed rule change requires each listed issuer to be audited by an
independent accountant that is registered as a public accounting
firm with the Public Company Accounting Oversight Board. See
Exchange Act Release No. 52896 (December 6, 2005), 70 FR 74074
(December 14, 2005). The Commission finds that this proposed rule
change is consistent with section 6(b)(5) of the Exchange Act for
the same reasons that the Commission approved this rule change under
section 15A(b)(6).

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

    The Commission finds that the proposed corporate governance listing
standards contained in the Nasdaq Exchange's proposed rules are
consistent with section 6(b)(5) of the Exchange Act and satisfy the
requirements of the section 10A(m) of the Exchange Act and Rule 10A-3
thereunder. The Commission believes that the Nasdaq Exchange's
corporate governance listing standards are designed to promote
independent and objective review and oversight of the accounting and
auditing practices of listed issuers and to enhance audit committee
independence, authority, and responsibility by implementing the
standards set forth in Rule 10A-3. Moreover, in the Commission's view,
the listing standards should help safeguard the interests of
shareholders and foster greater transparency, accountability, and
objectivity in the oversight by, and the decision making processes of,
the boards and key board committees of Nasdaq-listed issuers. The
Nasdaq Exchange's listing standards also should help promote compliance
with high standards of conduct by the issuers' directors, management,
and personnel.

F. Unlisted Trading Privileges

    Rule 602 of Regulation NMS requires the NASD to collect, process
and make available to vendors the best bid, best offer, and quotation
sizes in NMS securities \218\ communicated off an exchange by members
acting in the capacity of an OTC market maker. The NASD satisfies this
obligation today through its operation of the Nasdaq facility though
which NASD members quote and report trades in exchange-listed
securities. In offering this quote and trade reporting facility for
exchange-listed securities, the NASD does not have rules that comply,
in all respects, to section 12(f) of the Exchange Act and Rule 12f-5
thereunder because those provisions apply only to exchanges.\219\
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    \218\ An NMS security is any security for which transaction
reports are collected, processed, and made available pursuant to an
effective transaction reporting plan, or an effective national
market system plan for reporting transactions in listed options. 17
CFR 242.600(b)(46).
    \219\ See also section 15A(b)(11) of the Exchange Act.
---------------------------------------------------------------------------

    Once registered as an exchange, the Nasdaq Exchange will be
permitted by section 12(f) of the Exchange Act to extend unlisted
trading privileges to securities listed and registered on other
exchanges, subject to Commission rules. Exchange Act Rule 12f-5
requires an exchange that extends unlisted trading privileges to
securities to have in effect a rule or rules providing for transactions
in the class or type of security to which the exchange extends unlisted
trading privileges.\220\ The Commission notes that the Nasdaq Exchange
does not have in effect rules that comply with Rule 12f-5 for all
exchange-listed securities currently quoted on the Nasdaq facility of
the NASD.\221\ Accordingly, to continue trading such securities, the
Nasdaq Exchange would have to file a proposed rule change with the
Commission and obtain Commission approval of such rules.
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    \220\ 17 CFR 240.12f-5. See also Exchange Act Release No. 35737
(April 21, 1995), 60 FR 20891 (April 28, 1995) (adopting Rule 12f-
5).
    \221\ For example, the Nasdaq Exchange does not have rules that
comply with Rule 12f-5 for certain exchange-traded funds whose
holdings are primarily unregistered foreign securities (such as
those formerly known as World Equity Benchmark Shares or WEBS),
exchange-traded funds whose holdings are concentrated in a few
securities, exchange-traded funds that provide a leveraged
performance (such as xtraShares Trust Ultra Funds and Short Funds),
and certain commodity or foreign currency based derivative
securities (such as streetTracks Gold Shares (GLD), iShares Comex
Gold Trust Shares (IAU), and Euro Currency Shares (FXE)).
---------------------------------------------------------------------------

IV. Exemption From Section 19(b) of the Exchange Act With Regard to
NASD Rules Incorporated by Reference

    Nasdaq proposes to incorporate by reference many NASD rules as
Exchange rules. Thus, for certain Exchange rules, Exchange members will
comply with an Exchange rule by complying with the NASD rule
referenced.\222\ In connection with its proposal to incorporate NASD
rules by reference, Nasdaq requested, pursuant to Rule 240.0-12,\223\
an exemption under section 36 of the Exchange Act from the rule filing
requirements of section 19(b) of the Exchange Act for changes to those
Nasdaq Exchange rules that are effected solely by virtue of a change to
a cross-referenced NASD rule.\224\ Nasdaq proposes to incorporate by
reference categories of rules (rather than individual rules within a
category) that are not trading rules. In addition, the Nasdaq Exchange
agrees to provide written notice to its members whenever a proposed
rule change to an NASD rule that is incorporated by reference is
proposed.
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    \222\ Nasdaq proposed to incorporate by reference the following
NASD rules: Article IV, Section 8 of the NASD By-Laws; IM-1000-
1032; 1120; 2111; IM-2110-2; 2210; IM-2210-1; 2211; 2212; 2240;
2250; 2260; IM-2260; 2270; 2310; IM-2310-2; IM-2310-3; 2330; IM-
2330; 2340; 2341; 2360; 2361; 2370; 2430; 2510; 2520; 2810; 2830;
3010; IM-3010; 3011; 3012; 3013; IM-3013; 3020; 3030; 3040; 3050;
3060; 3070; 3080; IM-3110; 3120; 3130; IM-3130; 3150; 3510; 6953;
6954; 6955; 6957; the 10000 series; 11860; and 11870. In Amendment
No. 6, Nasdaq proposed that the Nasdaq Exchange incorporate by
reference recent amendments to the ``Manning Rule,'' NASD IM-2110-2,
and NASD Rule 2111, to reflect proposed rule changes approved by the
Commission for the NASD. The amendments to NASD IM-2110-2 prohibit a
Nasdaq Exchange member from trading for its own account in a Nasdaq
or exchange-listed security at a price that is better than an
unexecuted customer limit order in that security, unless the Nasdaq
Exchange member immediately executes the customer limit order at the
price at which the Nasdaq Exchange member traded for its own account
or better. See Exchange Act Release No. 52210 (August 4, 2005), 70
FR 46897 (August 11, 2005). NASD Rule 2111 extends the Manning Rule
to customer market orders. See Exchange Act Release No. 52226
(August 9, 2005), 70 FR 48219 (August 16, 2005). In addition, as a
result of these proposed rule changes, in Amendment No. 6 Nasdaq
proposed to delete certain provisions of Rule 6440(f) to reflect an
NASD proposed rule change approved by the Commission. See Exchange
Act Release No. 52722 (November 2, 2005), 70 FR 68120 (November 9,
2005). The Commission finds that these proposed rule changes are
consistent with Section 6(b)(5) of the Exchange Act for the same
reasons that the Commission approved these rule changes under
section 15A(b)(6).
    \223\ See 17 CFR 240.0-12.
    \224\ See letter to Nancy Morris, Secretary, Commission, from
Edward S. Knight, Executive Vice President and General Counsel,
Nasdaq, dated January 13, 2006. This letter supersedes and replaces
prior similar exemptive requests. See letters to Jonathan G. Katz,
Secretary, Commission, from Edward S. Knight, Executive Vice
President and General Counsel, Nasdaq, dated December 8, 2005 and
May 6, 2002.
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    Using its authority under section 36 of the Exchange Act, the
Commission previously exempted certain SROs from the requirement to
file proposed rule changes under section 19(b) of the Exchange
Act.\225\ Each such exempt SRO agreed to be governed by the
incorporated rules, as amended from time to time, but is not required
to file a separate proposed rule change with the Commission each time
the SRO whose rules are incorporated by reference seeks to modify its
rules.
---------------------------------------------------------------------------

    \225\ See Exchange Act Release No. 49260 (February 17, 2004), 69
FR 8500 (February 24, 2004).
---------------------------------------------------------------------------

    In addition, each SRO incorporated by reference only regulatory
rules (i.e., margin, suitability, arbitration), not trading rules, and
incorporated by reference whole categories of rules (i.e., did not
``cherry-pick'' certain individual rules within a category). Each
exempt SRO had reasonable procedures in place to provide written notice
to its members each time a change is proposed to the incorporated rules
of another SRO in order to provide its members with notice of a
proposed rule change that affects their interests, so that they would
have an opportunity to comment on it.
    The Commission is granting Nasdaq's request for exemption, pursuant
to section 36 of the Exchange Act, from the rule filing requirements of
section 19(b) of the Exchange Act with respect to the rules that the
Nasdaq Exchange proposes to incorporate by reference.

This exemption is conditioned upon the Nasdaq Exchange providing
written notice to its members whenever the NASD proposes to change a
rule that the Nasdaq Exchange has incorporated by reference. The
Commission believes that this exemption will promote more efficient use
of Commission and SRO resources by avoiding duplicative rule filings
based on simultaneous changes to identical rule text sought by more
than one SRO. Consequently, the Commission grants Nasdaq's exemption
request for the Nasdaq Exchange.

V. Conclusion

    It is ordered that the application of the Nasdaq Stock Market LLC
for registration as a national securities exchange be, and hereby is,
granted.
    It is further ordered that operation of the Nasdaq Exchange is
conditioned on the satisfaction of the requirements below.
    A. Participation in National Market System Plans. The Nasdaq
Exchange must join the CTA Plan, the CQ Plan, the Nasdaq UTP Plan, the
ITS Plan, and the Order Execution Quality Disclosure Plan.
    B. The NASD's Ability to Fulfill its Statutory and Regulatory
Obligations. The NASD must represent to the Commission that control of
Nasdaq through the Preferred D share is no longer necessary because the
NASD can fulfill through other means its obligations with respect to
non-Nasdaq exchange listed securities under Section 15A(b)(11) of the
Exchange Act, Rules 602 and 603 of Regulation NMS, and the national
market system plans in which the NASD participates.
    C. Intermarket Surveillance Group. The Exchange must join the
Intermarket Surveillance Group.
    D. Minor Rule Violation Plan. A MRVP filed by the Nasdaq Exchange
under Exchange Act Rule 19d-1(c)(2) must be declared effective by the
Commission.\226\
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    \226\ 17 CFR 240.19d-1(c)(2).
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    E. Fingerprint Plan. A fingerprint plan filed by the Nasdaq
Exchange under Exchange Act Rule 17f-2 must be declared effective by
the Commission.\227\
---------------------------------------------------------------------------

    \227\ 17 CFR 240.17f-2(c).
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    F. 17d-2 Agreement. An agreement pursuant to Exchange Act Rule 17d-
2 \228\ between the NASD and the Nasdaq Exchange that allocates to the
NASD regulatory responsibility for those matters specified above \229\
must be approved by the Commission, or the Nasdaq Exchange must
demonstrate that it independently has the ability fulfill all of its
regulatory obligations.
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    \228\ 17 CFR 240.17d-2.
    \229\ See supra text accompanying notes 114-117.

    By the Commission (Chairman Cox and Commissioners Glassman,
Atkins, Campos, and Nazareth).
Nancy M. Morris,
Secretary.
 [FR Doc. E6-664 Filed 1-20-06; 8:45 am]

BILLING CODE 8010-01-P


Comment Info: =================

General Comment:Dear Mr. Zeller:

I am writing as an individual consumer to request an extension of the comment period for the Food and Drug Administration's ("FDA") Proposed Rule Deeming Tobacco Products to be Subject to the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking and Prevention and Tobacco Control Act (the "Proposed Rule") published at 79 Fed. Reg. 23,142 and Federal Register No. 2014-09491. On behalf of myself, I am requesting that the comment period for the Proposed Rule be extended by the FDA for an additional 105 days, from its current 75-day period, to 180 days.

The Proposed Rule raises a number of significant issues and questions that are important and relevant to me, as a consumer of products that are proposed for regulation under the Proposed Rule. The Proposed Rule asks about a hundred different questions I might want to respond to. I want to provide my thoughts and comments on many of these issues, but my time to devote to researching and providing thoughtful comments on these important questions is limited. I have already spent many hours researching and dissecting these issues, but they take time. I know that the FDA took many years to even come up with the Proposed Rule, so I do not think it is at all unreasonable to allow the public a mere six months to comment on it. This is our only opportunity, as consumers, to provide our feedback.

I feel very strongly about e-cigarettes as an alternative to combustible cigarettes. Quite simply, I firmly believe that they saved my life. I wish to provide you with my personal story, as well as science- and evidence-based responses to your questions so that you can take my comment into account. I realize that the FDA has the authority under 21 CFR 10.40 to extend this time frame and that the FDA has exercised this authority on numerous occasions in the past. I would therefore ask that you do so here, so that all stakeholders have the opportunity to provide their comments on this proposed regulation.

Please take note and listen to those that have elected to change their lives. We should have the right to make these choices for ourselves.

I appreciate your consideration of my request and am happy to discuss this issue with you further.

Casey Kruse