[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Notices]
[Pages 67812-67814]
[FR Doc No: 2020-23672]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0100; Notice 2]

Daimler Trucks North America, Denial of Petition for Decision of
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).

ACTION: Notice of petition denial.

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SUMMARY: Daimler Trucks North America (DTNA) has determined that
certain model year (MY) 2011-2019 DTNA motor vehicles do not fully
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,
Lamps, Reflective Devices, and Associated Equipment. DTNA filed a
noncompliance report dated September 19, 2018. DTNA subsequently
petitioned NHTSA on October 11, 2018, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This document announces and explains the denial of DTNA's petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle
Safety Compliance, NHTSA, telephone<PHONE_NUMBER>, facsimile (202)
366-3081.

SUPPLEMENTARY INFORMATION:

I. Overview

    DTNA has determined that certain MY 2011-2019 DTNA motor vehicles
do not fully comply with paragraph S6.2 of FMVSS No. 108, Lamps,
Reflective Devices, and Associated Equipment (49 CFR 571.108). DTNA
filed a noncompliance report dated September 19, 2018, pursuant to 49
CFR part 573, Defect and Noncompliance Responsibility and Reports. DTNA
subsequently petitioned NHTSA on October 11, 2018, for an exemption
from the notification and remedy requirements of 49 U.S.C. Chapter 301
on the basis that this noncompliance is inconsequential as it relates
to motor vehicle safety pursuant to 49 U.S.C. 30118(d) and 30120(h) and
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of DTNA's petition was published with a 30-day
public comment period on April 23, 2019, in the Federal Register (84 FR
16930). No comments were received. To view the petition and all
supporting documents, log onto the Federal Docket Management System
(FDMS) website at https://www.regulations.gov/, and then follow the
online search instructions to locate docket number ``NHTSA-2018-0100.''

II. Vehicles Involved

    Approximately 14,340 MY 2011-2019 Western Star 4700 and 4900,
Freightliner Business Class M2, 114SD, 108SD, 122SD, and Coronado motor
vehicles manufactured between May 4, 2010, and August 23, 2018, are
potentially involved.

III. Noncompliance

    In its noncompliance report, DTNA stated that the noncompliance is
that the brake lights in the subject vehicles illuminate with Automatic
Traction Control (ATC) activation and, therefore, do not meet the
requirements specified in S6.2.1 of FMVSS No. 108.

IV. Rule Requirements

    Paragraphs S6.2.1 and S7.3.5, Table I-a of FMVSS No. 108, include
the requirements relevant to this petition. No additional lamp,
reflective device, or other motor vehicle equipment is permitted to be
installed that impairs the effectiveness of lighting equipment required
by FMVSS No. 108. Stop lamps must be activated upon application of the
service brakes. The stop lamps may also be activated by a device
designed to retard the motion of the vehicle.

V. Summary of DTNA's Petition

    DTNA describes the subject noncompliance and contends that the
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, DTNA offers the following reasoning:
    1. ATC events occur during low traction conditions such as snow,
ice, and mud. The duration of the event can be very short and may not
even be noticed by the following driver. If brake light illumination
for an ATC event is noticed, it would help to provide early warning of
an adverse road condition ahead and encourage the following driver to
slow down. Below are several examples of ATC events:
    a. Taking off from a stop: ATC can be very helpful to a driver when
taking off from a stop in low traction conditions. From time to time, a
vehicle will park with one drive axle wheel end right over a patch of
ice, and without ATC, it can be difficult to take off. This happens
after the vehicle has been stopped and is trying to move. It seems
unlikely that the activation of the brake lights during this ATC event
would cause a safety concern to following drivers since the vehicle is
stationary.
    b. Low speed: At low speed, hazard warning lights are commonly used
to warn other drivers of adverse road conditions such as those that are
in effect when an ATC event may occur. Since the hazard lights may
already be applied in this case, the addition of momentary brake light
activation is unlikely to cause confusion.
    c. High Speed: For an ATC event to occur at high speed, it would
signify that road conditions have changed rapidly. One way it could
happen is if the vehicle has been climbing a hill on dry roads in sub-
freezing conditions and crosses a patch of ice. This causes a wheel to
lose traction and the ATC applies brake force to that wheel end. The
torque is transferred to other wheel ends causing a momentary brake
light illumination. If it is a small ice patch, the event may be over
and the vehicle may continue on its way. If the ice patch is large, it
is imperative that the vehicle slows down to a safe speed under slick
conditions and warns others of the impending slowdown. As soon as slick
road conditions are noticed and wheels begin to slip, the driver would
let up on the throttle.
    Brakes are commonly applied causing the brake lights to illuminate
when a driver sees or senses a change in road conditions such as an icy
patch. Reducing vehicle speed in adverse conditions increases safety,
so signaling changing road conditions to following drivers would
improve safety and give them the opportunity to increase the following
distance. DOT guidance supports this goal:
    [cir] NHTSA's Winter Driving Tips says: ``Drive slowly. It's harder
to control or stop your vehicle on a slick or snow-covered road.
Increase your following distance enough so that you'll have plenty of
time to stop for vehicles ahead of you.''
    [cir] FMCSA released CMV Driving Tips; Tip #1 is: Reduce Your
Driving Speed in Adverse Road and/or Weather Conditions. ``You should
reduce your speed by \1/3\ on wet roads and by \1/2\ or more on snow-
packed roads (i.e., if you would normally be traveling at a speed of 60
mph on dry pavement, then on a wet road you should reduce your speed to
40 mph, and on a snow-packed road you should reduce your speed to 30
mph). When you come upon slick, icy roads you should drive slowly and
cautiously and pull off the road if you

can no longer safely control the vehicle.''
    2. DTNA states that it is not aware of any accidents, injuries,
owner complaints, or field reports for brake light illumination
triggered by ATC events concerning the subject vehicles.
    3. DTNA notes that NHTSA has previously granted petitions for
decisions of inconsequential noncompliance with lighting requirements
where there were technical noncompliances that did not create a
negative impact on safety.
    a. DTNA cites a petition for inconsequentiality submitted by
General Motors (GM) which was granted by NHTSA. See General Motors
Corp.; Grant of Application for Decision of Inconsequential
Noncompliance, 66 FR 32871 (June 18, 2001). This petition dealt with a
situation in which certain vehicles could experience brief, unintended
illumination of the center high-mounted stop lamp (CHMSL) if the hazard
warning lamp switch was depressed to its limit of travel. NHTSA stated:
``The intended use of a hazard warning lamp and the momentary
activation of a CHMSL do not provide a conflicting message. The
illumination of the CHMSL is intended to signify that the vehicle's
brakes are being applied and that the vehicle might be decelerating.
Hazard warning lamps are intended as a more general message to nearby
drivers that extra attention should be given to the vehicle. A brief
illumination of the CHMSL while activating the hazard warning lamps
would not confuse the intended general message, nor would the brief
illumination in the absence of the other brake lamps cause confusion
that the brakes were unintentionally applied.''
    DTNA believes that the same situation exists in the present case,
with temporary illumination of the brake lamps during ATC activation.
The temporary brake light illumination serves to emphasize the message
to following drivers that adverse or unusual road conditions may exist
and they should pay close attention.
    b. DTNA also cites another petition for inconsequentiality
submitted by GM which was granted by NHTSA. See General Motors, LLC,
Grant of Petition for Decision of Inconsequential Noncompliance, 83 FR
7847 (Feb. 2, 2018). This petition dealt with a situation in which,
under certain conditions, the parking lamps on the subject vehicles
failed to meet the requirement that parking lamps must be activated
when headlamps are activated in a steady burning state. NHTSA stated:
``The Agency agrees with GM that in this case, this situation would
have a low probability of occurrence and, if it should occur, it would
neither be long-lasting nor likely to occur during a period when
parking lamps are generally in use. Importantly, when the noncompliance
does occur, other lamps remain functional. The combination of all of
the factors, specific to this case, abate the risk to safety.''
    DTNA concludes by again contending that the subject noncompliance
is inconsequential as it relates to motor vehicle safety and asking
that its petition to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, be granted.
    DTNA's complete petition and all supporting documents are available
by logging onto the Federal Docket Management System (FDMS) website at:
https://www.regulations.gov and following the online search
instructions to locate the docket number listed in the title of this
notice.

VI. NHTSA's Analysis

    NHTSA has evaluated the merits of DTNA's petition for
inconsequential noncompliance and has decided that it should be denied.
    The purpose of FMVSS No. 108 is to reduce traffic accidents, and
deaths and injuries resulting from traffic accidents, by providing
adequate illumination of the roadway and by enhancing the conspicuity
of motor vehicles on the public roads so that their presence is
perceived and their signals understood, both in daylight and darkness
or other conditions of reduced visibility.
    The noncompliance at issue here is that the stop lamps in the
subject vehicles illuminate during a traction control event.
Specifically, during a traction control event, the stop lamps are being
activated by DTNA's ATC, which is not designed to retard the motion of
the vehicle. This is a clear noncompliance with paragraphs S6.2.1 and
S7.3.5, Table I-a of FMVSS No. 108. These paragraphs state that no
additional lamp, reflective device, or other motor vehicle equipment is
permitted to be installed that impairs the effectiveness of lighting
equipment and that the stop lamps must be activated upon application of
the service brake. The requirements also permit that the stop lamp may
be activated by a device designed to retard the motion of the vehicle.
    DTNA acknowledges that, in response to a request for interpretation
from GM, the Agency stated that ``activation of the stop lamps for a
purpose other than to indicate stopping or slowing will create
confusion for the driver following as to the meaning of the signal,
with the potential of causing that driver to apply the brakes in his or
her vehicle inappropriately.'' \1\ NHTSA continues to adhere to the
position that inappropriate and misleading activation of stop lamps is
consequential to safety. As defined by S4 of FMVSS No. 108, stop lamps
are lamps giving a steady light to the rear of a vehicle to indicate a
vehicle is stopping or diminishing speed by braking. In contrast, a
traction control event typically involves a vehicle that is trying to
gain traction to accelerate or maintain its existing speed. The
illumination of stop lamps during a traction control event would
therefore impair the effectiveness of the stop lamps and create a
potential safety risk by incorrectly signaling to a following driver
that there is an intent to slow down.
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    \1\ Letter from F. Seales, Jr., NHTSA, to C. Terry, GM (May 26,
2000), https://isearch.nhtsa.gov/files/21281.ztv.html.
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    DTNA cites a petition from GM that the Agency granted, relating to
the temporary illumination of the center high mounted stop lamp
(CHMSL).\2\ The Agency has reviewed this prior decision and finds that
it does not support a finding of inconsequential noncompliance in this
case. The noncompliance at issue in that petition involved a brief
illumination of the CHMSL upon activation of the hazard warning signal,
which, the Agency concluded, did ``not provide a conflicting message''
and ``would not confuse the intended general message.'' See General
Motors Corp., 66 FR 32872. As previously explained, the illumination of
a vehicle's stop lamps in a traction control event sends a
contradictory message.
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    \2\ 66 FR 32871, June 18, 2001.
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    Although the referenced GM decision issued by NHTSA stated that it
was limited to the specific facts presented, DTNA also cites another
petition submitted by GM that the Agency granted regarding the failure
of the subject vehicles to meet the parking lamp requirements of
paragraph S7.8.5 of FMVSS No. 108.\3\ The Agency has reviewed this
prior decision as well and finds that it does not support a finding of
inconsequential noncompliance in this case. The noncompliance at issue
in that petition involved a situation in which the front parking lamps
could be turned off under the following circumstances:
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    \3\ 83 FR 7847, February 02, 2018.
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    a. Operated during the daytime with the master lighting switch in
``AUTO'' mode.
    b. The transmission is not in ``Park.''

    c. Three or more high-inrush current spikes that exceed the body
control module (BCM) inrush current threshold occur on the parking
lamp/daytime running lamp (DRL) circuit within a period of 0.625
seconds.
    Under certain daytime conditions, a driver rapidly moving the
headlamp switch between the ``AUTO'' and ``Park'' positions could
generate these spikes that would turn the park lamps off. Although
potentially contradictory and misleading lighting signals resulted from
this noncompliance, NHTSA granted the petition because, among other
things, the noncompliance would occur only in daytime when parking
lamps are generally not in use, a fairly high degree of unusual user
intervention was required, and the condition would correct itself
during normal vehicle operation. See General Motors, LLC, 83 FR 7848.
In contrast, the traction control event and the misleading activation
of brake lights in the petition NHTSA is analyzing requires no unusual
user intervention, can occur under normal driving conditions, and poses
a risk both day and night.
    Illumination of the stop lamps during a traction control event is
an impairment of the stop lamp function. The safety risk occurs when
the stop lamps are activated and other road users expect that the
motion of the vehicle is being retarded, but the vehicle is not
slowing, thereby potentially confusing or misleading road users by the
introduction of a nonstandard signal.
    The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a standard--as opposed to a
labeling requirement--is more substantial and difficult to meet.
Accordingly, the Agency has not found many such noncompliances
inconsequential.\4\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
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    \4\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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    An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\5\ In general, NHTSA also
does not consider the absence of complaints or injuries to show that
the issue is inconsequential to safety. ``Most importantly, the absence
of a complaint does not mean there have not been any safety issues, nor
does it mean that there will not be safety issues in the future.'' \6\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \7\
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    \5\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
    \6\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \7\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
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    Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\8\ Similarly, NHTSA has rejected petitions
based on the assertion that only a small percentage of vehicles or
items of equipment are likely to actually exhibit a noncompliance. The
percentage of potential occupants that could be adversely affected by a
noncompliance does not determine the question of inconsequentiality.
Rather, the issue to consider is the consequence to an occupant who is
exposed to the consequence of that noncompliance.\9\ These
considerations are also relevant when considering whether a defect is
inconsequential to motor vehicle safety.
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    \8\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23,
2001) (rejecting argument that noncompliance was inconsequential
because of the small number of vehicles affected); Aston Martin
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663,
21664 (Apr. 12, 2016) (rejecting argument that petition should be
granted because the vehicle was produced in very low numbers and
likely to be operated on a limited basis).
    \9\ See Gen. Motors Corp.; Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14,
2004); Cosco Inc.; Denial of Application for Decision of
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that DTNA has
not met its burden of persuasion that the subject FMVSS No. 108
noncompliance is inconsequential to motor vehicle safety. Accordingly,
DTNA's petition is hereby denied and DTNA is consequently obligated to
provide notification of and free remedy for that noncompliance under 49
U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)

Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2020-23672 Filed 10-23-20; 8:45 am]
BILLING CODE 4910-59-P


[Federal Register: October 1, 2010 (Volume 75, Number 190)]
[Notices]
[Page 60863-60864]
[DOCID:fr01oc10-130]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Safety Advisory 2010-02

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of Safety Advisory; Signal Recording Devices for
Highway-Rail Grade Crossing Active Warning Systems that are
Interconnected with Highway Traffic Signal Systems.

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SUMMARY: FRA is issuing Safety Advisory 2010-02 to address Safety
Recommendations I-96-10 and I-96-11, issued by the National
Transportation Safety Board (NTSB) that relate to railroad and highway
signal recording devices at highway-rail grade crossings equipped with
active warning systems that are interconnected with highway traffic
signal systems. This safety advisory recommends that States, local
highway authorities, and railroads install, maintain, and upgrade
railroad and highway traffic signal recording devices at these types of
grade crossings. This safety advisory also recommends that States,
local highway authorities, and railroads conduct comprehensive periodic
joint inspections of highway traffic signal pre-emption
interconnections and use information obtained from any railroad and
highway traffic signal recording devices during those inspections.

FOR FURTHER INFORMATION CONTACT: Ron Ries, Staff Director, Highway-Rail
Grade Crossing & Trespasser Prevention Division, FRA, RRS-23, Mail Stop
25, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: (202)
493-6285); Thomas McFarlin, Staff Director, Signal & Train Control
Division, FRA, RRS-13, Mail Stop 25, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (telephone:<PHONE_NUMBER>); or Kathy Shelton,
Office of Chief Counsel, FRA, RCC-11, Mail Stop 10, 1200 New Jersey
Avenue, SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>).

SUPPLEMENTARY INFORMATION: In Safety Recommendation I-96-10, the NTSB
recommended that DOT require the use and maintenance of railroad and
highway traffic signal recording devices at all new and improved
highway-rail grade crossings equipped with active warning systems that
are interconnected with highway traffic signal systems. These devices
should be capable of recording sufficient parameters to allow railroad
and highway personnel to readily determine that the highway traffic
signals and railroad active warning systems are operating properly and
in a coordinated manner. The NTSB further recommended that DOT require
the use of information obtained from these railroad and highway traffic
signal recording devices during comprehensive and periodic joint
inspections.
    In Safety Recommendation I-96-11, the NTSB recommended that DOT
require the retention or upgrading of existing recording devices
installed at highway-rail grade crossings equipped with active railroad
warning systems that are interconnected with highway traffic signal
systems. In addition, the NTSB recommended that DOT require maintenance
of these recording devices and the use of information obtained from the
devices during comprehensive and periodic joint inspections.
    Highway traffic signal pre-emption interconnections, when present,
play a critical role in the proper functioning of a highway-rail grade
crossing active warning system. By changing the sequence of the traffic
signal to allow highway traffic to exit the crossing prior to the
arrival of a train, they can prevent vehicle entrapment on the highway-
rail grade crossing. Also, the changed traffic signal sequence prevents
conflicting visual traffic control messages for motorists approaching
highway-rail grade crossings located in close proximity to highway
traffic control signals (i.e., a proceed highway traffic signal display
into a nearby highway-rail grade crossing active warning system which
is activated to indicate the approach or occupancy of a train).
    In order to facilitate the proper functioning of the highway
traffic signal pre-emption interconnection, 49 CFR 234.261 requires
that railroads test each highway traffic signal pre-emption
interconnection at least once each month. Therefore, States, local
highway authorities, and railroads should identify which highway-rail
grade crossings are equipped, or intended to be equipped, with a
highway traffic signal pre-emption interconnection. If so equipped,
railroads should ensure that the circuit plan shows the actual
interconnection and the designed pre-emption time. Railroads should
also ensure that the interconnection is in place and the train
detection device (or equivalent) is programmed or equipped to provide
the appropriate designed pre-emption function.
    While FRA regulations require the testing of highway traffic signal
pre-emption interconnections at least once a month, this requirement
has historically only been applicable to the proper functioning of the
railroad's control circuit to the highway traffic controller. While
inspecting the highway traffic signal pre-emption interconnection, the
actual operation of the highway traffic signal should be observed.
Railroads should not rely solely on the operation of a relay or the
opening of a control circuit to the traffic signal control housing. In
fact, the preferred method of testing highway traffic signal pre-
emption is by observation of a train movement and of the actual pre-
emption function. Therefore, FRA recommends that railroads conduct
comprehensive joint inspections of the highway traffic signal pre-
emption interconnection with State and local highway authorities. These
comprehensive joint inspections should be conducted when the highway-
rail grade crossing active warning system is placed in service,
whenever any portion of the system which may affect the proper function
of the interconnection is modified or disarranged, and at least once
every 12 months, during which observation of the actual pre-emption
function and its effect on the highway traffic signal system can be
made. These comprehensive periodic joint inspections should also
include an inspection of the timing and operation of highway traffic
signal systems that are interconnected with highway-rail grade crossing
active warning devices, in order to ensure that the highway traffic
signal system responds appropriately to the railroad control circuit
and as designed. By conducting comprehensive periodic joint
inspections, the railroad and State and local highway authorities can
work together to observe and verify proper functioning of all necessary
components of the highway traffic signal pre-emption upon activation of
the highway-rail grade crossing active warning system.
    Neither the Federal Highway Administration (FHWA) nor FRA require
the retention or installation of railroad or highway signal recording
devices at highway-rail grade crossings

equipped with active warning systems that are interconnected with
highway traffic signal systems. However, in recognition of the critical
role served by highway traffic signal pre-emption interconnections with
respect to the proper functioning of a highway-rail grade crossing
active warning system, States, local highway authorities, and railroads
are encouraged to install railroad and highway traffic signal recording
devices at all new and improved highway-rail grade crossings that have
(or will have) active warning systems which are (or will be)
interconnected with highway traffic signal systems. Railroad and
highway traffic signal recording devices can provide a record of any
anomalies associated with the operation of the highway-rail grade
crossing active warning system and/or the highway traffic signal
system, which may prompt further investigation. Thus, as noted by the
NTSB, these recording devices should be capable of recording sufficient
parameters to allow railroad and highway personnel to readily determine
that the highway traffic signals and railroad-activated warning systems
are coordinated and operating properly.
    States, local highway authorities, and railroads are also
encouraged to maintain and upgrade existing railroad and highway
traffic signal recording devices at highway-rail grade crossings that
have active warning systems which are interconnected with highway
signal systems. With respect to signal recording devices for highway-
rail grade crossing active warning systems, older devices can record
basic information such as approach time and estimated train speed.
However, current signal recording devices for highway-rail grade
crossing active warning systems can monitor a variety of system
functions and provide reports on the ``health'' of the warning system,
such as the status of the flashing light units, gate position, power
supply, the presence of any grounded circuits, etc. Many modern traffic
signal systems feature software that includes various event logs that
get recorded in the traffic signal controller itself. These event logs
are periodically retrieved by the central system software. Among the
data retrieved would be any observed conflicts or preempts, as well as
logs and diagnostics on the vehicle detector in-pavement ``loops''.
Recognizing that data provided by signal recording devices can assist
States, local highway authorities, and railroads with the maintenance
of interconnected highway-rail grade crossing active warning systems
and highway traffic signal systems, FRA recommends that States, local
highway authorities, and railroads use the data provided by these
recording devices during their comprehensive periodic joint inspections
to determine whether further investigation of any recorded operational
anomalies may be warranted. It should be noted that railroad and
highway traffic signal recording devices may be eligible for funding
through FHWA's Railway-Highway Crossings Program (23 USC 130).
    Recommended Action: Based on the foregoing discussion and to
promote the safety of highway-rail grade crossings on the Nation's
railroads, FRA recommends the following:
    (1) Each State and local highway authority and railroad should
conduct comprehensive joint inspections of highway traffic signal pre-
emption interconnections when the highway-rail grade crossing active
warning system is placed in service, whenever any portion of the system
which may affect the proper function of the interconnection is modified
or disarranged, and at least once every 12 months, during which
observation of the actual pre-emption function and its effect on the
highway traffic signal system can be made;
    (2) Each State and local highway authority and railroad should
install railroad and highway traffic signal recording devices at all
new and improved highway-rail grade crossings that have active warning
systems which are interconnected with highway traffic signal systems;
    (3) Each State and local highway authority and railroad should
maintain and upgrade existing railroad and highway traffic signal
recording devices at highway-rail grade crossings that have active
warning systems which are interconnected with highway traffic signal
systems; and
    (4) Each State and local highway authority and railroad should use
the data provided by railroad and highway traffic signal recording
devices during their comprehensive periodic joint inspections of
interconnected highway-rail grade crossing active warning systems and
highway traffic signal systems to determine whether further
investigation of any recorded operational anomalies may be warranted.

States and local highway authorities and railroads are encouraged to
take action consistent with the preceding recommendations to help
ensure the safety of highway-rail grade crossings. FRA may modify this
Safety Advisory 2010-02, or take other appropriate action necessary, to
ensure the highest level of safety on the Nation's railroads.

    Issued in Washington, DC, on September 27, 2010.
Jo Strang,
Associated Administrator for Railroad Safety/Chief Safety Officer.
[FR Doc. 2010-24702 Filed 9-30-10; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register Volume 88, Number 44 (Tuesday, March 7, 2023)]
[Notices]
[Pages 14221-14224]
[FR Doc No: 2023-04581]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97009; File No. SR-DTC-2023-002]

Self-Regulatory Organizations; The Depository Trust Company;
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change
To Modify the Operational Arrangements

March 1, 2023.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on February 17, 2023, The Depository Trust Company (``DTC'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I, II and III below, which Items have
been prepared by the clearing agency. DTC filed the proposed rule
change pursuant to Section 19(b)(3)(A) of the Act \3\ and Rule 19b-
4(f)(4) thereunder.\4\ The Commission is publishing this notice to
solicit comments on the proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(3)(A).
    \4\ 17 CFR 240.19b-4(f)(4).
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I. Clearing Agency's Statement of the Terms of Substance of the
Proposed Rule Change

    The proposed rule change \5\ consists of modifications to the DTC
Operational Arrangements (Necessary for Securities to Become and Remain
Eligible for DTC Services) (``OA'') \6\ to add to its existing Legal
Notice System (``LENS'') a means of receiving certain index reference
rate information for posting to LENS. Specifically, the proposal would
provide a Web-based, centralized process to facilitate the receipt and
posting of LENS notice information, for Participants, on benchmark
replacement rates and related details \7\ (``replacement rate
information'') from issuers, trustees and agents of Securities that are
currently benchmarked to the London Inter-Bank Offered Rate (``LIBOR'')
index,\8\ as described in greater detail below.
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    \5\ Each capitalized term not otherwise defined herein has its
respective meaning as set forth the Rules, By-Laws and Organization
Certificate of DTC (the ``Rules''), available at http://www.dtcc.com/legal/rules-and-procedures.aspx.
    \6\ Available at http://www.dtcc.com/~/media/Files/Downloads/
legal/issue-eligibility/eligibility/operational-arrangements.pdf.
The OA is a Procedure of DTC. Pursuant to the Rules, the term
``Procedures'' means the Procedures, service guides, and regulations
of DTC adopted pursuant to Rule 27, as amended from time to time.
See Rule 1, Section 1, supra note 5. They are binding on DTC and
each Participant in the same manner that they are bound by the
Rules. See Rule 27, supra note 5.
    \7\ Details related to the replacement rate include, but are not
be limited to, (i) the replacement rate selected; (ii) identifying
information for the issue, such as the CUSIP number; (iii) whether
the replacement rate information being submitted is new or an update
to a prior LENS submission; and (iv) identifying details relating to
the submitter of the replacement rate information, including name
and entity type (e.g., paying agent, trustee, issuer, etc.). See
also DTCC LIBOR Replacement Index Communication Tool User Guide,
available at https://www.dtcc.com/-/media/Files/Downloads/Settlement-Asset-Services/Issuer-Services/Libor-Tool-User-Guide.pdf.
    \8\ LIBOR is an indicative measure of the average interest rate
at which major global banks can borrow from one another. LIBOR is
quoted in multiple currencies and multiple terms, or ``maturities,''
using data reported by private-sector banks. See SEC Staff Statement
on LIBOR Transition--Key Considerations for Market Participants
(December 7, 2021), Staff of the Securities and Exchange Commission,
available at https://www.sec.gov/news/statement/staff-statement-libor-transition-20211207.
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II. Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

    In its filing with the Commission, the clearing agency 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

clearing agency has prepared summaries, set forth in sections A, B, and
C below, of the most significant aspects of such statements.

(A) Clearing Agency's Statement of the Purpose of, and Statutory Basis
for, the Proposed Rule Change

1. Purpose
    The proposed rule change consists of modifications to the OA to add
to LENS a means of receiving certain index reference rate information
for posting to LENS. Specifically, the proposal would provide a Web-
based, centralized process to facilitate the receipt and posting of
LENS notice information, for Participants, on replacement rate
information from issuers, trustees and agents of Securities that are
currently benchmarked to the LIBOR index.
Background
LENS
    A LENS notice is a notice of information provided to DTC often by
an issuer, trustee, transfer agent, or other third party that is intend
for holders of Securities on deposit at DTC. Parties submitting LENS
notices may have a legal or regulatory obligation or other interest in
distributing the notice information to holders of the Securities. The
notices are delivered to DTC because DTC's nominee, Cede & Co., is the
registered holder of the applicable Securities and/or DTC is the
appropriate qualified registered securities depository \9\ with respect
to the issue.
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    \9\ Pursuant to Rule 17Ad-16 under the Act, an ``appropriate
qualified registered securities depository'' shall mean the
qualified registered securities depository that the Commission so
designates by order or, in the absence of such designation, the
qualified registered securities depository that is the largest
holder of record of all qualified registered securities depositories
as of the most recent record date. 17 CFR 240.17Ad-16(f).
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    LENS notices are generally delivered to DTC via email.\10\ If a
notice is delivered to DTC in accordance with applicable Procedures set
forth in the OA, DTC then posts the notice to LENS, where notices are
then available for viewing by Participants.\11\ A Participant may share
the notices with their customers that may hold a beneficial interest in
the subject Security on the books of the Participant.
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    \10\ See OA, supra note 6, at 23-25.
    \11\ Id. Participant fees for single-use access and
subscriptions to LENS are set forth in the DTC Fee Guide. See DTC
Fee Guide, available at https://www.dtcc.com/-/media/Files/Downloads/legal/fee-guides/DTC-Fee-Schedule.pdf, at 25.
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Proposed Expansion of LENS
    DTC understands that issuers of Securities that currently use LIBOR
(USD) as a reference rate will need to choose a replacement benchmark
and disseminate information on replacement rates to holders ahead of
the LIBOR retirement date, which is scheduled for June 30, 2023.\12\
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    \12\ See ARRC LIBOR Legacy Playbook (July 11, 2022) (``ARRC
Playbook''), available at https://www.newyorkfed.org/medialibrary/Microsites/arrc/files/2022/LIBOR_Legacy_Playbook.pdf, at 1.
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    This proposed rule change is intended to help facilitate the
centralized receipt and dissemination of such replacement rate
information through LENS, without requiring the submission of
individual LENS notice emails for posting. Specifically, the proposal
will update the OA to (i) establish a new LENS tool for receiving
replacement rate information on Securities currently benchmarked to
LIBOR (i.e., the LIBOR Replacement Index Communication Tool
(``Communication Tool'')), and (ii) provide for the posting of that
replacement rate information to LENS.\13\
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    \13\ The Communication Tool was developed by DTC, in
consultation with the Alternative Reference Rate Committee
(``ARRC'') and other financial industry organizations. The ARRC is a
group of private-market participants convened by the Board of
Governors of the Federal Reserve System and the Federal Reserve Bank
of New York to help ensure a successful transition from LIBOR to an
alternative reference rate, such as the Secured Overnight Financing
Rate (``SOFR''). ARRC is comprised of a diverse set of private-
sector entities with a presence in markets affected by LIBOR, and a
wide array of official-sector entities, including banking and
financial sector regulators, as ex-officio members. See ARRC
website, available at https://www.newyorkfed.org/arrc/about.
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    While DTC will continue to use email for submission of all other
LENS notice types, the LENS Communication Tool will offer a more
efficient and effective process to receive and disseminate potentially
high volumes \14\ of replacement rate information through LENS in a
compressed time period.
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    \14\ DTC believes over 100,000 issuances may require the
dissemination of replacement rate information in connection with the
pending retirement of LIBOR.
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Proposed Rule Change
    Pursuant to the proposed rule change, the OA will be revised to
include a new section on the Communication Tool (``New Section''). The
New Section will explain that the Communication Tool is designed to
help issuers, trustees and agents communicate via LENS certain LIBOR
benchmark replacement rate information for Securities that are
converting from LIBOR (USD) to an alternative reference rate. The New
Section will provide a link to DTCC's LIBOR transition web page,\15\
where the Communication Tool will be available, and will note that
links to the Communication Tool also may be available via the DTCC
website, Important Notices, direct communications with issuers,
trustees and agents, and other websites.
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    \15\ Available at https://www.dtcc.com/settlement-and-asset-services/issuer-services/libor-transition. The web page will
include, among other things, a LIBOR Replacement Index Communication
Tool User Guide to help issuers, trustees and agents navigate and
use the Communication Tool, including step-by-step instructions and
descriptive information on forms and required data fields.
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    Regarding use of the Communication Tool, the New Section will
explain that users must first complete an automated verification
process.\16\ Once verified, access will be granted and the user will be
able an input replacement rate information (i) for multiple securities
at one time, using templates in the Communication Tool, or (ii) for an
individual Security, not using a template.\17\ In either case, the user
also will have the option to upload accompanying documentation to
include with the inputted replacement rate information, all of which
will be posted to LENS.
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    \16\ Users will be required to provide their business contact
information for verification purposes.
    \17\ Template options will vary based on template format and the
alternative reference rate chosen (e.g., SOFR or a different
reference rate). The templates are included as an Exhibit 3 to this
proposal.
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    The New Section will explain that once the user has successfully
input all replacement rate information (and uploaded any accompanying
documentation), the user may review the information and make any
changes, if necessary. If satisfied with the information provided, the
user may submit the information for posting to LENS. Once submitted to
LENS, the user will be able to save, export, and print a copy of the
posted information for the user's own records.
    The New Section will note that (i) all replacement rate information
and any accompanying documentation (if applicable) submitted by the
user will be posted to LENS in a standardized format reflecting the
information submitted by the user; (ii) users should retain a copy of
all replacement rate information that they submit for their own
records; and (iii) the Communication Tool will be decommissioned and
the New Section deleted by DTC on September 30, 2024, as explained
further below.
    Finally, the New Section will include a disclaimer that DTC does
not review any information submitted through the Communication Tool for
accuracy, completeness, or confidential information. Rather, it is the
full and sole responsibility of the user submitting the information to
ensure that the information is accurate, complete, and does not include
any

information that would otherwise be deemed as confidential or material
non-public information.
Effective Date
    The proposed rule change will be implemented on February 24, 2023.
Termination Date
    As indicated above, LIBOR is expected to be retired on June 30,
2023. DTC believes that demand and use of the Communication Tool will
gradually reduce after that date. Therefore, in anticipation of the
Communication Tool no longer being needed by September 30, 2024,
pursuant to this proposed rule change, the Communication Tool will be
decommissioned September 30, 2024, and the New Section proposed herein
would be removed from the OA.
2. Statutory Basis
    Section 17A(b)(3)(F) of the Act \18\ requires that the rules of the
clearing agency be designed, inter alia, to, generally, protect
investors and the public interest. As described above, the proposed
rule change would help facilitate the communication of LIBOR
replacement rate information provided through the new LENS
Communication Tool and posted to LENS. As with other information posted
to LENS, Participants may then communicate such replacement rate
information to their customers that hold affected Securities. In this
regard, DTC believes that the proposed rule change would help protect
investors and the public interest by promoting fair and transparent
markets through facilitation of the distribution of replacement rate
information to Participants, who may then pass the information to their
clients.
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    \18\ 15 U.S.C. 78q-1(b)(3)(F).
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    Rule 17Ad-22(e)(21) \19\ promulgated under the Act requires, inter
alia, that DTC, a covered clearing agency, establish, implement,
maintain and enforce written policies and procedures reasonably
designed to, as applicable, be efficient and effective in meeting the
requirements of its participants and the markets it serves. As
described above, the proposed rule change would update the OA to
establish the Communication Tool--a Web-based, centralized means for
DTC to receive replacement rate information more efficiently and
effectively than via an email submission--and to provide for the
posting of that replacement rate information to LENS for Participant
consumption. In this regard, DTC believes that the proposed rule change
would provide a more streamlined approach for issuers, trustees and
agents to disseminate replacement rate information to Participants, and
ultimately investors, regarding Securities that they may hold and
processed through DTC. Therefore, DTC believes that the proposed rule
change would help promote efficiency and effectiveness in DTC meeting
the requirements of its participants and the markets it serves,
consistent with Rule 17Ad-22(e)(21).
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    \19\ 17 CFR 240.17Ad-22(e)(21).
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(B) Clearing Agency's Statement on Burden on Competition

    DTC does not believe that the proposed rule change will have any
impact, or impose any burden, on competition.
    As described above, the proposed rule change consists of changes to
the OA that will provide for the implementation of the Communication
Tool to accommodate the submission of replacement rate information for
posting to LENS. The Communication Tool will be publicly available on
DTCC's LIBOR transition web page. Use of the Communication Tool to
submit replacement rate information will be free of charge and there
will be no additional charge for Participants to receive such
replacement rate information as part of their existing LENS
subscription.\20\
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    \20\ Although existing Participant fees for the use of LENS
would continue to apply, LENS is an optional service and
Participants are only charged if they choose to participate in the
service.
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(C) Clearing Agency's Statement on Comments on the Proposed Rule Change
Received From Members, Participants, or Others

    DTC has not received or solicited any written comments relating to
this proposal. If any written comments are received, they would be
publicly filed as an Exhibit 2 to this filing, as required by Form 19b-
4 and the General Instructions thereto.
    Persons submitting comments are cautioned that, according to
Section IV (Solicitation of Comments) of the Exhibit 1A in the General
Instructions to Form 19b-4, the Commission does not edit personal
identifying information from comment submissions. Commenters should
submit only information that they wish to make available publicly,
including their name, email address, and any other identifying
information.
    All prospective commenters should follow the Commission's
instructions on how to submit comments, available at https://www.sec.gov/regulatory-actions/how-to-submitcomments. General questions
regarding the rule filing process or logistical questions regarding
this filing should be directed to the Main Office of the Commission's
Division of Trading and Markets at [email protected] or 202-
551-5777.
    DTC reserves the right to not respond to any comments received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A) \21\ of the Act and paragraph (f) \22\ of Rule 19b-4
thereunder. At any time within 60 days of the filing of the proposed
rule change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act.
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    \21\ 15 U.S.C. 78s(b)(3)(A).
    \22\ 17 CFR 240.19b-4(f).
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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 email to [email protected]. Please include
File Number SR-DTC-2023-002 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-DTC-2023-002. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the

Commission and any person, other than those that may be withheld from
the public in accordance with the provisions of 5 U.S.C. 552, will be
available for website viewing and printing in the Commission's Public
Reference Room, 100 F Street, NE, Washington, DC 20549 on official
business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of
the filing also will be available for inspection and copying at the
principal office of DTC and on DTCC's website (http://dtcc.com/legal/sec-rule-filings.aspx). All comments received will be posted without
change. Persons submitting comments are cautioned that we do not redact
or edit personal identifying information from comment submissions. You
should submit only information that you wish to make available
publicly. All submissions should refer to File Number SR-DTC-2023-002
and should be submitted on or before March 28, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\23\
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    \23\ 17 CFR 200.30-3(a)(12).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2023-04581 Filed 3-6-23; 8:45 am]
BILLING CODE 8011-01-P