[Federal Register Volume 88, Number 182 (Thursday, September 21, 2023)]
[Rules and Regulations]
[Pages 65120-65122]
[FR Doc No: 2023-20445]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2022-1159; Project Identifier AD-2022-00692-E;
Amendment 39-22530; AD 2023-17-04]
RIN 2120-AA64

Airworthiness Directives; Continental Aerospace Technologies,
Inc. Engines

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: The FAA is superseding Airworthiness Directive (AD) 2022-04-04
for certain Continental Aerospace Technologies, Inc. (Continental)
Model C-125, C145, IO-360, IO-470, IO-550, O-300, O-470, TSIO-360, and
TSIO-520 series engines and certain Continental Motors IO-520 series
engines with a certain oil filter adapter installed. AD 2022-04-04
required replacing the oil filter adapter fiber gasket (fiber gasket)
with an oil filter adapter copper gasket (copper gasket). This AD was
prompted by reports of two accidents that were the result of power loss
due to oil starvation. This AD requires replacing the fiber gasket with
a copper gasket or a stainless steel embedded within
polytetrafluoroethylene gasket (stainless steel PTFE gasket). This AD
also revises the applicability to include Continental model engines
equipped with an F&M Enterprises, Inc. (F&M) or a Stratus Tool
Technologies, LLC (Stratus) oil filter adapter installed. The FAA is
issuing this AD to address the unsafe condition on these products.

DATES: This AD is effective October 26, 2023.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of October 26,
2023.

ADDRESSES:

    AD Docket: You may examine the AD docket at regulations.gov under
Docket No. FAA-2022-1159; or in person at Docket Operations between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD
docket contains this final rule, any comments received, and other
information. The address for Docket Operations is U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.
    Material Incorporated by Reference:
     For service information identified in this final rule,
contact Stratus Tool Technologies, LLC, 2208 Air Park Drive,
Burlington, NC 27215; phone:<PHONE_NUMBER>; website: tempestplus.com.
     You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 1200
District Avenue, Burlington, MA 01803. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>. It is
also available at regulations.gov under Docket No. FAA-2022-1159.

FOR FURTHER INFORMATION CONTACT: George Hanlin, Aviation Safety
Engineer, FAA, 1701 Columbia Avenue, College Park, GA 30337; phone:
(404) 474-5584; email: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The FAA issued a supplemental notice of proposed rulemaking (SNPRM)
to amend 14 CFR part 39 to supersede AD 2022-04-04, Amendment 39-21945
(87 FR 9435, February 22, 2022) (AD 2022-04-04). AD 2022-04-04 applied
to certain Continental Model C-125, C145, IO-360, IO-470, IO-520, IO-
550, O-300, O-470, TSIO-360, TSIO-520 series engines with a certain oil
filter adapter installed. The SNPRM published in the Federal Register
on June 2, 2023 (88 FR 36258). The SNPRM was prompted by a comment from
an individual commenter noting that certain engine models were missing
from the applicability in the notice of proposed rulemaking (NPRM). The
commenter also specified that the referenced service information in the
NPRM has been revised by the manufacturer. In response to this comment,
the FAA determined that additional model engines are affected by the
unsafe condition and, as a result, should be added to the applicability
paragraph of this AD. The FAA also discovered that certain model
engines, with permold type crankcases, were inadvertently included in
the applicability paragraph of the NPRM, which the FAA removed in the
SNPRM. In the SNPRM, the FAA proposed to require replacing the fiber
gasket with a copper or stainless steel PTFE gasket. The FAA also
proposed to revise the applicability to include Continental model
engines equipped with an F&M or a Stratus oil filter adapter installed
per Supplemental Type Certificate SE8409SW, SE09356SC, or SE10348SC. In
addition, the FAA also proposed to include the revised service
information. The FAA is issuing this AD to address the unsafe condition
on these products.

Discussion of Final Airworthiness Directive

Comments

    The FAA received no comments on the SNPRM or on the determination
of the costs.

Conclusion

    The FAA reviewed the relevant data and determined that air safety
requires adoption of the AD as proposed. Accordingly, the FAA is
issuing this AD to address the unsafe condition on these products.
Except for minor editorial changes, this AD is adopted as proposed in
the SNPRM.

Related Service Information Under 1 CFR Part 51

    The FAA reviewed Stratus Mandatory Service Bulletin SB-001 Rev C,
dated June 16, 2022, which specifies procedures for removing a fiber
gasket and replacing it with a copper gasket, P/N AN900-28 or P/N
AN900-29, or a stainless steel PTFE gasket, P/N ST07, as an improved
alternative to the copper gasket.
    This service information is reasonably available because the
interested parties have access to it through their normal course of
business or by the means identified in the ADDRESSES section.

Costs of Compliance

    The FAA estimates that this AD affects 6,300 engines installed on
airplanes of U.S. registry.
    The FAA estimates the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per       Cost on U.S.
               Action                        Labor cost           Parts cost        product         operators
----------------------------------------------------------------------------------------------------------------
Replace fiber gasket with copper      2.5 work-hours x $85                $34          $246.50       $1,552,950
 gasket or stainless steel PTFE        per hour = $212.50.
 gasket.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, Section 106, describes the
authority of the FAA Administrator. Subtitle VII, Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701, General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA has determined that this AD will not have federalism
implications under Executive Order 13132. This AD will not have a
substantial direct effect 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.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Will not affect intrastate aviation in Alaska, and
    (3) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by:
0
a. Removing Airworthiness Directive AD 2022-04-04, Amendment 39-21945
(87 FR 9435, February 22, 2022); and
0
b. Adding the following new airworthiness directive:

2023-17-04 Continental Aerospace Technologies, Inc.: Amendment 39-
22530; Docket No. FAA-2022-1159; Project Identifier AD-2022-00692-E.

(a) Effective Date

    This airworthiness directive (AD) is effective October 26, 2023.

(b) Affected ADs

    This AD replaces AD 2022-04-04, Amendment 39-21945 (87 FR 9435,
February 22, 2022) (AD 2022-04-04).

(c) Applicability

    This AD applies to Continental Aerospace Technologies, Inc.
(Continental) model engines equipped with an F&M Enterprises, Inc.
(F&M) or a Stratus Tool Technologies, LLC (Stratus) oil filter
adapter installed per Supplemental Type Certificate SE8409SW,
SE09356SC, or SE10348SC.
    Note 1 to paragraph (c): These F&M and Stratus oil filter
adapters are known to be installed on Continental Model C-125, C-
145, GO-300, IO-360, IO-470, IO-520, IO-550, O-300, O-470, TSIO-360,
and TSIO-520 series engines.

(d) Subject

    Joint Aircraft System Component (JASC) Code 8550, Reciprocating
Engine Oil System.

(e) Unsafe Condition

    This AD was prompted by reports of two accidents that were the
result of power loss due to oil starvation. The FAA is issuing this
AD to prevent loss of engine power. The unsafe condition, if not
addressed, could result in failure of the engine, in-flight
shutdown, and loss of control of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    Before accumulating 50 flight hours after the effective date of
this AD or at the next scheduled oil change after the effective date
of this AD, whichever occurs first, remove any F&M or Stratus oil
filter adapter fiber gasket from service and replace it with an oil
filter adapter copper gasket, part number (P/N) AN900-28 or P/N
AN900-29, or a stainless steel polytetrafluoroethylene gasket, P/N
ST07, as applicable, in accordance with the Compliance Instructions,
paragraph 6., pages 6 through 10 (including all detailed
instructions for Figure 5 through Figure 16), of Stratus Tool
Technologies Mandatory Service Bulletin SB-001 Rev C, dated June 16,
2022.

(h) Installation Prohibition

    After the effective date of this AD, do not install an F&M or a
Stratus oil filter adapter fiber gasket on any affected engine.

(i) Credit for Previous Actions

    You may take credit for the actions required by paragraph (g) of
this AD if you performed those actions before the effective date of
this AD using Stratus Tool Technologies Mandatory Service Bulletin
SB-001 Rev B, dated June 17, 2021, which was previously approved for
IBR on March 29, 2022 (87 FR 9435, February 22, 2022), but is not
incorporated by reference in this AD.

(j) Special Flight Permit

    A special flight permit may be issued in accordance with 14 CFR
21.197 and 21.199 to permit a one-time non-revenue ferry flight to
operate the airplane to the nearest location where the maintenance
action can be performed provided that the engine oil pressure and
engine oil temperatures are in their allowable ranges and there is
no noticeable increase in engine noise. This flight must be
performed with no passengers on board.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, East Certification Branch, FAA, has the
authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the manager of the certification branch, send it to the
attention of the person identified in paragraph (l) of this AD.
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) AMOCs approved for AD 2022-04-04 are approved as AMOCs for
the corresponding provisions of this AD.

(l) Additional Information

    For more information about this AD, contact George Hanlin,
Aviation Safety Engineer, FAA, 1701 Columbia Avenue, College Park,
GA 30337; phone:<PHONE_NUMBER>; email: [email protected].

(m) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Stratus Tool Technologies Mandatory Service Bulletin SB-001
Rev C, dated June 16, 2022.
    (ii) [Reserved]
    (3) For service information identified in this AD, contact
Stratus Tool Technologies, LLC, 2208 Air Park Drive, Burlington, NC
27215; phone:<PHONE_NUMBER>; website: tempestplus.com.
    (4) You may view this service information at the FAA,
Airworthiness Products Section, Operational Safety Branch, 1200
District Avenue, Burlington, MA 01803. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records Administration
(NARA). For information on the availability of this material at
NARA, email: [email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued on September 15, 2023.
Victor Wicklund,
Deputy Director, Compliance & Airworthiness Division, Aircraft
Certification Service.
[FR Doc. 2023-20445 Filed 9-20-23; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: November 10, 2005 (Volume 70, Number 217)]
[Notices]
[Page 68418]
[DOCID:fr10no05-65]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP06-59-000]

Distrigas of Massachusetts LLC; Notice of Cancellation of Rate
Schedule

November 2, 2005.
    Take notice that on October 28, 2005, Distrigas of Massachusetts
LLC., (DOMAC) tendered for filing a notice that effective November 1,
2005, the one-year Storage Services Agreement (Storage Agreement) dated
November 1, 2004, between DOMAC and Boston Gas Company (Boston Gas),
constituting Fifth Revised Sheet Nos. 85, 86, 88, 89, 90 and 91 and
Sixth Revised Sheet No. 87 of DOMAC's FERC Gas Tariff, is automatically
terminated by its terms and Rate Schedule SS-1, Second Revised Sheet
Nos. 25, 26, and 27 and Fifth Revised Sheet No. 28 of DOMAC's FERC Gas
Tariff, is to be canceled, coinciding with the termination of the
Storage Agreement.
    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 and 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 November 9, 2005.
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not 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 e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
 [FR Doc. E5-6195 Filed 11-9-05; 8:45 am]

BILLING CODE 6717-01-P


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[Federal Register: September 28, 2007 (Volume 72, Number 188)]
[Rules and Regulations]
[Page 55091-55100]
[DOCID:fr28se07-22]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 173, 175 and 178

[Docket No. RSPA-04-17664 (HM-224B)]
RIN 2137-AD33

Hazardous Materials Regulations: Transportation of Compressed
Oxygen, Other Oxidizing Gases and Chemical Oxygen Generators on
Aircraft

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

ACTION: Final rule; response to appeals.

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SUMMARY: On January 31, 2007, PHMSA published a final rule that amended
requirements in the Hazardous Materials Regulations applicable to the
air transportation of compressed oxygen cylinders and oxygen
generators. In response to appeals submitted by entities affected by
the January 31 final rule, this final rule amends requirements adopted
in the January 31, 2007 final rule and delays the effective

date of these requirements from October 1, 2007 to October 1, 2008.

DATES: Effective Date: The effective date of the amendments in the
January 31, 2007 final rule (72 FR 4442) is delayed from October 1,
2007 to October 1, 2008. The effective date of the amendments in this
final rule is October 1, 2008.
    Voluntary compliance: Voluntary compliance with the requirements in
the January 31 final rule was authorized as of March 2, 2007. Voluntary
compliance with the amendments in the January 31 final rule, including
those with a delayed compliance date, is authorized as of October 29,
2007.

FOR FURTHER INFORMATION CONTACT: John A. Gale or T. Glenn Foster,
Office of Hazardous Materials Standards, telephone<PHONE_NUMBER>,
Pipeline and Hazardous Materials Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., East Building, 2nd Floor,
PHH-11, Washington, DC 20590-0001, or David Catey, Office of Flight
Standards Service, telephone<PHONE_NUMBER>, Federal Aviation
Administration, U.S. Department of Transportation, 800 Independence
Avenue, SW., Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

List of Topics

I. Supplementary Background
II. Appeals
    A. Outer Packaging That Meets Certain Flame Penetration and
Thermal Resistance Requirements When Transported Aboard Aircraft
    B. Test Method in Appendix D to part 178 and Test Protocol for
Outer Packaging
    C. Effective Date for Pressure Relief Device Settings on
Cylinders of Compressed Oxygen and Other Oxidizing Gases
    D. Marking Requirements
    E. Authorized Cylinders for Compressed Oxygen and Other
Oxidizing Gases
    F. Miscellaneous
III. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. Regulation Identifier Number (RIN)
    I. Privacy Act

I. Supplementary Background

    On January 31, 2007, PHMSA, in cooperation with the Federal
Aviation Administration (FAA), issued a final rule under Docket No.
RSPA-04-17664 (HM-224B) enhancing the safety standards for
transportation by air of compressed oxygen, other oxidizing gases and
chemical oxygen generators (72 FR 4442). Specifically, the January 31
final rule:
    (1) Requires cylinders of compressed oxygen and other oxidizing
gases and packages of chemical oxygen generators to be placed in an
outer packaging that meets certain flame penetration and thermal
resistance requirements when transported aboard an aircraft;
    (2) Revises the pressure relief device (PRD) setting limit on
cylinders of compressed oxygen and other oxidizing gases transported
aboard aircraft;
    (3) Limits the types of cylinders authorized for transporting
compressed oxygen aboard aircraft; and
    (4) Converts most of the provisions of an oxygen generator approval
into requirements in the HMR.

II. Appeals

    The following organizations submitted appeals to the January 31
final rule, in accordance with 49 CFR part 106: Air Canada (AC); Barlen
and Associates, Inc. (Barlen); PSI Plus, Inc. (PSI); and United
Airlines, Inc. (United). Delta Airlines (Delta) also submitted a letter
expressing its general support for United's formal appeal. The
appellants based their appeals on several aspects of the January 31
final rule, most notably, the effective date of certain requirements in
the rule, cost and availability of the required outer packaging,
marking requirements, and thermal resistance testing. We also received
requests for clarification of certain requirements of the January 31
final rule. The Good View Trading Company (GVT) also expressed concerns
about the impact the January 31 final rule will have on the current
exceptions for live fish transported aboard aircraft.
    In this final rule, we are granting the request to delay the
mandatory effective date from October 1, 2007 until October 1, 2008 to
require a new limit on the pressure relief device (PRD) settings on
cylinders containing compressed oxygen or other oxidizing gases when
transported aboard aircraft. We are clarifying the thermal resistance
test methods for packagings for oxygen cylinders and oxygen generators
in Appendix D to part 178. We are granting the request to include DOT
specification 3E and 39 cylinders among the types of cylinders
authorized for the transportation of compressed oxygen and other
oxidizing gases aboard aircraft. In addition, we are providing a
marking option to ensure easier identification of cylinders equipped
with the new PRD and outer packagings meeting the flame penetration and
thermal resistance requirements. The appeals and issues of the
appellants and other concerned parties are discussed in detail below.

A. Outer Packaging That Meets Certain Flame Penetration and Thermal
Resistance Requirements When Transported Aboard Aircraft

    The January 31 final rule amended the HMR to require cylinders of
compressed oxygen and other oxidizing gases and chemical oxygen
generators to be transported in an outer packaging that: (1) Meets the
same flame penetration resistance standards as required for cargo
compartment sidewalls and ceiling panels in transport category
airplanes; and (2) provides certain thermal protection capabilities so
as to retain its contents during an otherwise controllable cargo
compartment fire. The outer packaging standard adopted in the January
31 final rule addresses two safety concerns: (1) Protecting a cylinder
and an oxygen generator that could be exposed directly to flames from a
fire; and (2) protecting a cylinder and an oxygen generator that could
be exposed indirectly to heat from a fire. These performance
requirements must remain in effect for the entire service life of the
outer packaging.
    Under the January 31 final rule, an outer packaging for a cylinder
containing compressed oxygen or another oxidizing gas and a package
containing an oxygen generator must meet the standards in Part III of
Appendix F to 14 CFR part 25, Test Method to Determine Flame
Penetration Resistance of Cargo Compartment Liners. An outer
packaging's materials of construction must prevent penetration by a
flame of 1,700 [deg]F for five minutes, in accordance with Part III of
Appendix F, paragraphs (a)(3) and (f)(5) of 14 CFR part 25. A method
for thermal resistance testing of packagings for oxygen cylinders and
oxygen generators was added by the January 31 final rule under a new
Appendix D to part 178 of the HMR. To ease understanding of and
compliance with the flame penetration test requirements, in this final
rule we are adding a new Appendix E to part 178, which will include the
entire test procedure. This will eliminate the necessity for persons
performing the flame penetration test to refer to the requirements in
Appendix F to 14 CFR part 25.
    In its appeal, United expresses concern about several aspects of
these provisions, including international repercussions, risk
assessment and analysis, effects of this rulemaking on travelers
requiring medical oxygen, and the cost basis for the packaging required
by the January 31 final rule.

Specifically, United contends that no test data or other substantiation
of compliance with requirements for outer packaging by any packaging
manufacturer was placed in the public docket. United also states that
although the January 31 final rule indicates at least one packaging
manufacturer appears to have addressed the flame penetration and
thermal penetration standard and is able to produce the required
packaging, neither this company nor any other has actually produced it.
In addition, United contends that because the packaging required by the
January 31 final rule does not yet exist, the cost estimates made by
the agency are unreliable.
    We are not persuaded that the required packagings will be
unavailable or that we have underestimated the cost of bringing them to
market. PHMSA issued the January 31 final rule only after reviewing
test data and other materials substantiating the development of
packagings meeting the performance standard. Based on consultation with
companies that are able to produce similar packaging and reviewing
their packaging prototypes, supporting test documentation and cost
estimates, we believe the required packaging will be available in
sufficient time for the affected parties to comply with this
requirement. (Because of its confidential proprietary nature, we did
not post this documentation in the public docket for this rulemaking.)
PHMSA and FAA intend to closely monitor the availability of the
required packaging as the effective date of this provision approaches
and will consider an extension of the compliance date for this
requirement if it is determined that a sufficient supply of the
required outer packaging is not available.
    Likewise, the fact that the required packaging is not yet
commercially available does not make the cost estimates for this
rulemaking unreasonable. As referenced in the January 31 final rule,
packaging manufacturers provided estimates of costs for the existing
ATA specification 300 packagings and the new outer packaging. We
utilized these estimates, in addition to our own research, in the
regulatory evaluation (available for review in the public docket for
this rulemaking). Although some of the figures provided by the
commenters were slightly higher than ours, the differences were not
significant. Accordingly, we believe that our estimate of a total cost
of $10.8 million ($7.6 million discounted to present value) over 15
years, for the transport of oxygen cylinders, and $27.0 million ($16.9
million discounted to present value) over 15 years, for the costs
associated with the transport of chemical oxygen generators, are
reasonable estimates of the costs of this rulemaking despite the
current lack of an available outer packaging in an after-market
condition.
    United also refers to the statement in the January 31 final rule
that DOT intends to submit a paper to the International Civil Aviation
Organization (ICAO) Dangerous Goods Panel to propose that the ICAO
Technical Instructions be amended consistent with the requirements of
the packaging required by the January 31 rulemaking. United requests
that a copy of such a U.S. proposal be placed in the public docket for
HM-224B, and that the views of other air carriers in the international
community be considered. United states that PHMSA should collect input
from the international community before concluding rulemaking action in
this docket because of the international aviation environment and
PHMSA's expressed stance on the benefits of global harmonization.
United also recommends that if the new requirements are adopted
internationally through ICAO, the compliance dates for affected
carriers should coincide to avoid unnecessary compliance complexity in
the aviation industry.
    We agree that the international community should be considered when
initiating any regulatory change that could potentially affect
international commerce. As indicated in the January 31 final rule, it
was PHMSA's intention to submit a working paper pertaining to this
rulemaking for discussion at the meeting of the ICAO Dangerous Goods
Panel (DGP). PHMSA submitted a paper to the DGP Working Group of the
Whole (held April 30 to May 4, 2007) which provided information
relative to the amendments to the HMR to enhance the requirements for
the transportation of compressed oxygen, other oxidizing gases and
chemical oxygen generators on aircraft. The working paper can be viewed
on the public ICAO Web site at: http://www.icao.int/anb/FLS/DangerousGoods/FLSDG.cfm.
 A copy of this working paper has also been

placed in the public docket for this rulemaking. However, we are not
prepared to defer this rulemaking while changes to international
standards are considered. As we explained in the January 31 final rule,
the risk of an unintentional actuation of an oxygen generator or a
cylinder containing oxygen or another oxidizing gas during an aircraft
fire is a serious safety risk that we believe must be immediately
addressed, without waiting for the outcome of international
deliberations.
    United also contends that the final rule is inconsistent with
PHMSA's expressed commitment to promote risk-based, data-driven, and
cost-effective standards. United asserts that PHMSA justified the
January 31 rulemaking on a worst-case scenario that was not supported
by actual data in the record and that affected parties therefore should
be given time to review and comment on such data. As explained in the
January 31 final rule, we have utilized a risk-based approach to the
air transportation of compressed oxygen cylinders and oxygen generators
since the tragic events of the ValuJet Airlines crash in 1996. FAA has
established through testing that cylinders of compressed oxygen release
their contents at temperatures well below those that aircraft cargo
compartment liners and structures are designed to withstand. When the
surface temperature of a cylinder of compressed oxygen reaches
approximately 300 [deg]F, the increase in internal pressure causes the
cylinder's pressure relief device to open and release oxygen. The risk
that such a release could vent directly into a fire significantly
increases the risks posed by aircraft fires. FAA also found that use of
an outer packaging specifically designed to provide both thermal
protection and flame penetration may significantly lengthen the time a
cylinder will retain its contents when exposed to fire or heat.
Therefore, our rationale for this January 31 final rule is a
continuation of our ongoing risk-based approach and is centered on the
conclusions drawn from the ``Evaluation of Oxygen Cylinder Overpacks
Exposed to Elevated Temperatures'' conducted by FAA (available for
review in the public docket for this rulemaking).
    United also contends that PHMSA did not adequately address the
potential of the new packaging requirements to restrict air travel by
individuals who need compressed oxygen to travel. It states that
additional packaging cost and other related costs could dissuade air
carriers from providing this service. The commenter also states that
although PHMSA requested information on this scenario in the January 31
final rule, the impact could not be considered sufficiently without
adequate and reliable information on the cost of the required
packaging.
    PHMSA is acutely aware of the specific needs of individuals who
require compressed oxygen to travel, and has maintained ongoing
dialogue with FAA and other agencies in an attempt to minimize
requirements that

may restrict their travel. For example, PHMSA and FAA have partnered
with the Office of the Secretary of Transportation to develop a
rulemaking that proposes to provide greater accommodations for persons
with respiratory disabilities, and provide passengers free in-flight
medical oxygen in accordance with applicable safety rules. See
``Nondiscrimination on the Basis of Disability in Air Travel--Medical
Oxygen and Portable Respiration Assistive Devices,'' Docket No. OST-
2005-22298, 70 FR 53108 (September 7, 2005), 70 FR 61241 (October 21,
2005).
    The January 31 final rule complements the goal of providing a safer
environment for people with disabilities by requiring cylinders of
compressed oxygen and other oxidizing gases and packages of chemical
oxygen generators to be placed in an outer packaging that meets certain
flame penetration and thermal resistance requirements when transported
aboard an aircraft. We note that the current regulations specified in
Sec.  175.501 of the HMR allow for the use of oxygen by passengers in
the aircraft cabin and provide for the stowage of a combined total of
six cylinders of compressed oxygen, which, under the conditions
specified in this section, do not require that they be placed in the
new outer packaging.
    For the reasons cited above, the appeal to the requirement that an
outer packaging for a cylinder containing compressed oxygen or another
oxidizing gas and a package containing an oxygen generator must meet
the standards adopted in the January 31 final rule is denied.

B. Test Method in Appendix D to Part 178 and Test Protocol for Outer
Packaging

    The January 31 final rule amended the HMR by adding a thermal
resistance test for packagings for oxygen cylinders and oxygen
generators in a new appendix (Appendix D) to part 178. United
recommends that PHMSA clarify the test method described in Paragraph
4.1 of this appendix, which states, ``It is recommended that the
cylinder be closed at ambient temperature and configured as when filled
with a valve and pressure relief device. The oxygen generator must be
filled and may be tested with or without packaging.'' United indicates
that it understands from discussions that took place with PHMSA and its
trade association after publication of the January 31 final rule that
PHMSA did not intend to require testing of the outer packaging with
inner receptacles containing hazardous materials. If an alternative
filling material was intended, the commenter requests PHMSA clarify
this portion of the appendix as applicable. United suggests that ``any
alternate material should exhibit comparable heat-absorbing properties
of compressed oxygen in the cylinder, or oxidizing solid in the
generator.'' If, however, oven testing with packagings containing
hazardous materials is required, the commenter is uncertain there is a
testing facility capable of performing such a test.
    In publishing the January 31 final rule, it was our intention to
permit the thermal resistance test to be conducted on an oxygen
cylinder that is either empty or filled with nitrogen. It was also our
intention that an oxygen generator must be tested completely filled
with its oxidizing agent. Therefore, in this final rule, we are
granting United's request to clarify the test method described in
Appendix D to Part 178. In addition, we are also providing an
alternative to the use of thermocouples specified in the test methods
of Appendix D to part 178.
    United also expresses concern that the test protocol for outer
packaging required by the January 31 final rule will change in the near
future. For example, the commenter points out the footnote in the
preamble at page 4444 of the January 31 final rule:

    The FAA is currently evaluating other non-ozone-depleting
suppression agents that could eventually be used in cargo
compartments. Some of these agents can maintain an adequate level of
safety in the compartment, but the mean temperature may be slightly
higher than 400 [deg]F, which is the level found during typical
halon-suppressed fires. If an alternative agent is used, the oven
soak temperature level may need to be adjusted accordingly.

    United states that the investment by itself and other air carriers
in the newly required outer packaging is too substantial for the test
performance temperature to be addressed in such vague terms. The
commenter requests clarification of this statement and an assessment of
the probability that it will result in a revision to the performance
standard for outer packaging by, or relatively soon after, the October
1, 2007 mandatory compliance date.
    We understand the commenter's concern regarding the footnote on
page 4444 of the January 31 final rule which references FAA's ongoing
evaluation of other non-ozone-depleting suppression agents that could
eventually be used in cargo compartments. By including the footnote,
our intention was to provide additional information about testing
agents currently under consideration which may affect test performance
temperatures. For clarification, FAA's halon replacement program was
designed to develop minimum performance standards (MPS) for the various
extinguishing systems used aboard aircraft. These MPS would establish a
baseline test for new agents to demonstrate that the agent had
comparable fire-fighting effectiveness to that of Halon 1211 and 1301.
FAA has developed the MPS for hand-held fire extinguishers, waste bins,
and cargo compartments. In addition, three halocarbon agents have been
approved for use in hand-held fire extinguishers. While alternative
agents are currently being evaluated, none have been approved for use
on aircraft. Further, the FAA informs us that it has no plans at
present to mandate the use of halon replacements. Therefore, we do not
anticipate that a revision to the test protocol for outer packaging
required by the January 31 final rule will occur in the near future.

C. Effective Date for Pressure Relief Device Settings on Cylinders of
Compressed Oxygen and Other Oxidizing Gases

    The January 31 final rule revised the HMR to require a new limit on
the pressure relief device (PRD) settings on cylinders containing
compressed oxygen or other oxidizing gases when transported aboard
aircraft. To ensure the cylinder contents are not released into an
aircraft cargo compartment in the event of a fire, we amended the HMR
to limit the PRD to a setting that will prevent it from releasing at
temperatures the cylinder will experience while protected by the outer
packaging. We also amended the HMR to require cylinders containing
oxidizing gases, including oxygen, be equipped with PRDs that have a
set pressure equal to the cylinder test pressure with allowable
tolerances of -10 to plus zero percent. The effective date of this
requirement for cylinders containing compressed oxygen and oxidizing
gases was established in the January 31 final rule as the first
requalification test due after October 1, 2007.
    United requests that PHMSA delay the mandatory effective date from
October 1, 2007 until October 1, 2008 in order to allow it and other
air carriers to come into compliance with this requirement of the
January 31 final rule. United states that ``after cylinder
manufacturers develop and implement new designs, conduct any required
testing, complete the detailed approval process, and [sic] manufacture
and distribute the new PRDs, it then will be

necessary to transport these cylinders as air cargo to assure global
distribution to all of United's facilities where replacements might
need to be installed, and to accommodate breathing-oxygen needs for
impaired passengers as part of United's current effort to serve such
customers.'' In addition, United states that procedures for oxygen
cylinder maintenance and quality assurance programs must be revised,
prompting additional training, testing and certification of both
employees and their supervisors, and that ``in addition to all the
cylinders that may come due for periodic retest as early as October 1,
2007, it is assumed that any new oxygen cylinders purchased as
replacement parts will need to be equipped with the new PRD as of that
date.'' United states the demand for PRDs will likely peak around the
October 1, 2007 effective date specified in the January 31 final rule,
and it foresees an inadequate supply of PRDs. The commenter further
states that it has over 6,500 cylinders affected by this rule and,
after discussions with the manufacturers of these cylinders and
external repair facilities, it is concerned that bringing its cylinders
into compliance with this requirement by the January 31 final rule
effective date will not be achievable.
    We accept the likelihood that more time may be necessary to allow
for the testing, approval, distribution, and training associated with
this requirement of the January 31 final rule. Therefore, we are
extending the effective date for this provision from October 1, 2007
until October 1, 2008. By this revised date, the HMR requires a new
limit on the PRD settings on cylinders containing compressed oxygen or
other oxidizing gases when transported aboard aircraft. The effective
date of this requirement for cylinders containing compressed oxygen and
oxidizing gases is established as the first requalification test due
after October 1, 2008.
    In the January 31 final rule, we added a new Sec.  173.168 that
would: (1) Specify the means to be incorporated into an oxygen
generator to prevent inadvertent actuation; (2) require the oxygen
generator to be capable of withstanding a 1.8 meter drop with no loss
of contents or actuation; and (3) specify packaging, shipping paper,
and marking requirements for those oxygen generators that are installed
in a piece of equipment sealed or otherwise packaged so it is difficult
to determine if an oxygen generator is present. The effective date of
these new requirements is October 1, 2007, except for the packaging
requirement in paragraph (d) of Sec.  173.168, which becomes effective
on September 30, 2009. We received a request for clarification
regarding these effective dates. One commenter requests clarification
as to whether the requirements prior to the January 31 final rule
pertaining to chemical oxygen generators, particularly approvals, were
intended to remain in effect until the effective date of the January 31
final rule. For clarification, our intention in the January 31 final
rule was for the current requirements concerning chemical oxygen
generators, including approvals, to remain in effect until the overall
effective date of the January 31 final rule. A similar issue was raised
by the same commenter concerning the additional requirements for
shipment of nonliquefied (permanent) and liquefied compressed gases in
specification cylinders found in Sec. Sec.  173.302a and 173.304a,
respectively. The commenter asks whether it was PHMSA's intention to
continue current outer packaging requirements for non-liquefied
(permanent) and liquefied compressed gases in specification cylinders
until the effective dates specified in these revised sections.
    The answer is yes. It was also our intention in the January 31
final rule that the current requirements for the shipment of
nonliquefied and liquefied compressed gases in specification cylinders
remain in effect until the effective dates specified under these
revised sections. In this final rule, we are revising the amendments to
Sec. Sec.  173.302a and 173.304a to clarify these effective dates and
are re-designating them under new paragraph (f) of Sec.  173.302--
``Filling of cylinders with non-liquefied (permanent) compressed
gases--'' and new paragraph (f) of Sec.  173.304--``Filling of
cylinders with liquefied compressed gases--'' respectively, to provide
a more logical, user-friendly format. We are also revising Sec.
173.301 to direct the user to these new paragraphs.

D. Marking Requirements

    United also urges PHMSA to take further steps to ensure easier
identification of cylinders equipped with the new PRD and outer
packagings meeting the flame penetration and thermal resistance
requirements. In its appeal, the commenter requests that PHMSA require
manufacturers to distinguish between the modified cylinders, as well as
the modified outer packaging, through the use of a uniform marking
requirement. United asserts that such a marking requirement would have
the benefit of clarifying DOT's jurisdiction over the manufacturers,
specifically with respect to compliance with testing, hazmat employee
training, and record-keeping provisions. In addition, United states
that a consistent visible mechanism will allow its employees and DOT
enforcement officials to determine whether a UN or ATA Specification
300 outer packaging meets the new rule versus prior requirements, and
to identify with reliable ease and certainty which DOT and UN cylinders
are authorized to transport specific hazardous materials by air. United
stresses the importance of such a provision because of the common
airline industry practice of conducting code share operations and
participating in loaned parts programs.
    PHMSA acknowledges the commenters' concerns that current labeling
and marking requirements may not fully identify cylinders equipped with
the new PRD and outer packagings meeting the flame penetration and
thermal resistance requirements of the January 31 final rule. However,
because we did not propose any additional marking or labeling
requirements in the NPRM, we cannot formally adopt a uniform marking or
labeling requirement in this final rule. Any new marking or labeling
requirement must be proposed in a future rulemaking to allow for public
comment. Instead, PHMSA and FAA have developed a voluntary marking that
may be affixed to an outer packaging meeting the flame penetration and
thermal resistance requirements of the January 31 final rule to
indicate compliance with these provisions of the regulations. The
marking is as follows:

DOT31FP

    We emphasize that this marking is not a requirement. We will
consider proposing this marking as a uniform marking requirement in a
future rulemaking, and, if this or some other marking is adopted, it
would be incorporated into the HMR as an acceptable indication that the
outer packaging meets the flame penetration and thermal resistance
requirements and is in compliance with the requirements of the January
31 final rule.

E. Authorized Cylinders for Compressed Oxygen and Other Oxidizing Gases

    The January 31 final rule revised the HMR to limit cylinders
authorized for the transportation of compressed oxygen and other
oxidizing gases aboard aircraft to DOT specifications 3A, 3AA, 3AL, and
3HT in order to minimize numerous PRD setting requirements for oxygen
cylinders aboard aircraft.
    Barlen comments that DOT 39 and DOT 3E cylinders are safer than 3AL
cylinders and questions why these

cylinders were eliminated in the January 31 final rule. PSI, a
manufacturer of high-pressure steel DOT 39 and DOT 3E cylinders,
requests reconsideration of the requirement to limit cylinders
authorized for the transportation of compressed oxygen aboard aircraft
and a delay in implementation of the requirements of the January 31
final rule. This commenter states the majority of the cylinders it
manufactures are sold to companies producing gas mixtures used for gas
calibration equipment and medical devices, such as blood gas analyzers.
PSI notes that although DOT 3A and DOT 3AA cylinders are allowed in the
January 31 final rule, these cylinders are not used for calibration gas
mixtures because of their excessive weight. The commenter asserts that
the requirements in the January 31 final rule would effectively ban the
use of the only cylinders it manufactures. PSI adds that testing has
shown steel DOT 39 and DOT 3E cylinders will survive fires for longer
periods of time and be more resistant to higher failure temperatures
than aluminum 3AL cylinders, and, along with Barlen, requests DOT to
consider permitting the use of these cylinder types in addition to the
DOT 3AL cylinders specified in the January 31 final rule. In addition,
PSI requests DOT to allow limited quantities of oxygen-rich calibration
gas mixtures to be transported on non-passenger aircraft such as those
operated by Federal Express and UPS. Finally, PSI requests a delay in
the implementation of this rule to allow for presentation of additional
information.
    We agree with the commenters that including DOT 39 and DOT 3E
cylinders as cylinders authorized for the transportation of compressed
oxygen and other oxidizing gases aboard aircraft does not pose an
additional safety hazard and will provide carriers more flexibility
when transporting these materials aboard aircraft. Therefore, we are
revising the HMR to limit cylinders authorized for the transportation
of compressed oxygen and other oxidizing gases aboard aircraft to DOT
specifications 39, 3A, 3AA, 3AL, 3E, and 3HT, and UN pressure
receptacles ISO 9809-1, ISO 9809-2, ISO 9809-3 and ISO 7866 cylinders,
including a new limit on the PRD settings.

F. Miscellaneous Issues

    Currently, Sec.  173.302(c) specifies that an authorized cylinder
containing oxygen continuously fed to tanks containing live fish may be
offered for transportation and transported. One commenter, the Good
View Trading Company (GVT), expresses concern about the impact that the
new outer packaging requirement in the January 31 final rule will have
on the current exceptions for live fish transported aboard aircraft. In
publishing the January 31 final rule, our intention was not to
eliminate this exception. Therefore, for clarification, we are revising
this section to specifically except it from the new outer packaging
requirements.
    In addition, on May 3, 2007, PHMSA published a final rule under
Docket No. PHMSA-2005-23141 (HM-215F) in the Federal Register (72 FR
25161). The HM-215F final rule amended the HMR to revise and
consolidate the requirements applicable to the use of the International
Civil Aviation Organization's Technical Instructions for the Safe
Transport of Dangerous Goods by Air, the International Maritime
Dangerous Goods Code, Transport Canada's Transportation of Dangerous
Goods Regulations, and the International Atomic Energy Agency's Safety
Standards Series: Regulations for the Safe Transport of Radioactive
Material. The revisions and reformatting provide a user-friendly format
to promote understanding of the conditions and limitations on the use
of international standards and regulations. In the HM-215F final rule,
the ICAO Technical Instructions (formerly Sec.  171.11) were re-
designated as new Sec.  171.24. As a result of this designation, the
revisions adopted in this section under the January 31 final rule were
inadvertently omitted. Therefore, we are republishing new Sec.  171.24
as amended in the January 31 final rule for clarification.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for Rulemaking

    This final rule is published under the authority of Federal
hazardous materials transportation law (Federal hazmat law; 49 U.S.C.
5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the
Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not a significant action under section 3(f) of
Executive Order 12866 and was not reviewed by the Office of Management
and Budget. This final rule is not a significant action under the
Regulatory Policies and Procedures of the Department of Transportation.
The revisions adopted in this final rule do not alter the cost-benefit
analysis and conclusions contained in the Regulatory Evaluation
prepared for the January 31, 2007 final rule. The Regulatory Evaluation
is available for review in the public docket for this rulemaking.

 C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts State, local and Indian tribe requirements, but
does not amend any regulation that has direct effects on the States,
the relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101-
5127, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on the following
subjects:
    (1) The designation, description, and classification of hazardous
material;
    (2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
    (3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
    (5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
    This final rule addresses items 2 and 5 above and preempts any
State, local, or Indian tribe requirements not meeting the
``substantially the same'' standard.
    Federal hazardous materials transportation law provides at Sec.
5125(b)(2) that, if DOT issues a regulation concerning any of the
covered subjects, DOT must determine and publish in the Federal
Register the effective date of Federal preemption. The effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
This effective date of preemption is 90 days after the publication of
this final rule in the Federal Register.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
will not have tribal implications, does not impose substantial direct
compliance costs on Indian tribal governments, and does not preempt
tribal law, the funding and consultation requirements of Executive
Order 13175 do not apply, and a tribal summary impact statement is not
required.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies

    The Regulatory Flexibility Act of 1980 requires an agency to review
regulations to assess their impact on small entities unless the agency
determines that a rule is not expected to have a significant impact on
a substantial number of small entities. This final rule will not impose
increased compliance costs on the regulated industry. The revisions,
clarifications, and corrections we are making to the January 31, 2007
final rule will provide regulatory relief to persons transporting
compressed oxygen, other oxidizing gases and chemical oxygen generators
on aircraft by: Delaying the mandatory effective date from October 1,
2007 until October 1, 2008 to require a new limit on the pressure
relief device (PRD) settings on cylinders containing compressed oxygen
or other oxidizing gases when transported aboard aircraft; clarifying
the thermal resistance test methods for packagings for oxygen cylinders
and oxygen generators in Appendix D to Part 178, including DOT
specification 3E and 39 cylinders to the types of cylinders authorized
for the transportation of compressed oxygen and other oxidizing gases
aboard aircraft; and providing a marking option to ensure easier
identification of cylinders equipped with the new PRD and outer
packagings meeting the flame penetration and thermal resistance
requirements. Thus, DOT has determined that this final rule will not
have a significant impact on a substantial number of small entities.
Accordingly, pursuant to the Regulatory Flexibility Act, 5 U.S.C.
605(b), DOT certifies that this rule will not have a significant
economic impact on a substantial number of small entities. Therefore, I
certify that this rule will not have a significant economic impact on a
substantial number of small entities.
    This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.

 F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (the Act) is intended,
among other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of the Act
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in an expenditure of $100 million or more (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector; such a mandate
is deemed to be a ``significant regulatory action.'' The FAA currently
uses an inflation-adjusted value of $128.1 million in lieu of $100
million.
    This final rule does not contain such a mandate. The requirements
of Title II do not apply.

G. Paperwork Reduction Act

    PHMSA currently has approved information collections under OMB
Control Number 2137-0572, ``Testing Requirements for Non-Bulk
Packaging'' with an expiration date of March 31, 2010, and OMB Control
Number 2137-0557, ``Approvals for Hazardous Materials'' with an
expiration date of March 31, 2008. This final rule imposes no new
information collection and recordkeeping requirements.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.

I. Privacy Act

    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit
http://dms.dot.gov.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste,
Labeling, Markings, Packaging and containers, Reporting and
recordkeeping requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.

49 CFR Part 175

    Air carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.

49 CFR Part 178

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

0
In consideration of the foregoing, we are amending 49 CFR Chapter I as
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410, section 4 (28 U.S.C. 2461 note); Pub. L. 104-134,
section 31001.

0
2. In Sec.  171.24, paragraph (d)(2) as added on May 3, 2007 (72 FR
25172) effective October 1, 2007, is revised to read as follows:

Sec.  171.24  Additional requirements for the use of ICAO Technical
Instructions.

* * * * *
    (d) * * *
    (2) A package containing Oxygen, compressed, or any of the
following oxidizing gases must be packaged as required by Parts 173 and
178 of this subchapter: carbon dioxide and oxygen mixtures, compressed;
compressed gas, oxidizing, n.o.s.; liquefied gas, oxidizing, n.o.s.;
nitrogen trifluoride; and nitrous oxide.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS

0
3. The authority citation for part 173 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

0
4. In Sec.  173.168, as added on January 31, 2007, paragraphs (d)
introductory text, (d)(1), (d)(2) introductory text and (d)(2)(i) are
revised to read as follows:

Sec.  173.168  Chemical oxygen generators.

* * * * *
    (d) Packaging. A chemical oxygen generator and a chemical oxygen
generator installed in equipment, (e.g., a PBE) must be placed in a
rigid outer packaging that--
    (1) Conforms to the requirements of either:
    (i) Part 178, subparts L and M, of this subchapter at the Packing
Group I or II performance level; or
    (ii) The performance criteria in Air Transport Association (ATA)
Specification No. 300 for a Category I Shipping Container.
    (2) After September 30, 2009, with its contents, is capable of
meeting the following additional requirements when transported by
cargo-only aircraft:
    (i) The Flame Penetration Resistance Test in Appendix E to part 178
of this subchapter;
* * * * *

0
5. In Sec.  173.301, paragraph (f)(3) is revised to read as follows:

Sec.  173.301  General requirements for shipment of compressed gases
and other hazardous materials in cylinders, UN pressure receptacles and
spherical pressure vessels.

* * * * *
    (f) * * *
    (3) For a specification 3, 3A, 3AA, 3AL, 3AX, 3AXX, 3B, 3BN, or 3T
cylinder filled with gases in other than Division 2.2 (except oxygen
and oxidizing gases transported by aircraft, see Sec. Sec.  173.302(f)
and 173.304(f)), beginning with the first requalification due after
December 31, 2003, the burst pressure of a CG-1, CG-4, or CG-5 pressure
relief device must be at test pressure with a tolerance of plus zero to
minus 10%. An additional 5% tolerance is allowed when a combined
rupture disk is placed inside a holder. This requirement does not apply
if a CG-2, CG-3, or CG-9 thermally activated relief device or a CG-7
reclosing pressure valve is used on the cylinder.
* * * * *

0
6. In Sec.  173.302, paragraph (c) is revised and a new paragraph (f)
is added to read as follows:

Sec.  173.302  Filling of cylinders with non-liquefied (permanent)
compressed gases.

* * * * *
    (c) Notwithstanding the provisions of Sec. Sec.  173.24(b)(1) and
paragraph (f) of this section, an authorized cylinder containing oxygen
continuously fed to tanks containing live fish may be offered for
transportation and transported.
* * * * *
    (f) Compressed oxygen and oxidizing gases by aircraft. A cylinder
containing oxygen, compressed; compressed gas, oxidizing, n.o.s.; or
nitrogen trifluoride is authorized for transportation by aircraft only
when it meets the following requirements:
    (1) Only DOT specification 3A, 3AA, 3AL, 3E, 3HT, and 39 cylinders,
and UN pressure receptacles ISO 9809-1, ISO 9809-2, ISO 9809-3 and ISO
7866 cylinders are authorized.
    (2) Cylinders must be equipped with a pressure relief device in
accordance with Sec.  173.301(f) and, for DOT 39 cylinders offered for
transportation after October 1, 2008, for the other DOT specification
cylinders with the first requalification due after October 1, 2008, or
for the UN pressure receptacles prior to initial use:
    (i) The rated burst pressure of a rupture disc for DOT 3A, 3AA,
3AL, 3E, and 39 cylinders, and UN pressure receptacles ISO 9809-1, ISO
9809-2, ISO 9809-3 and ISO 7866 cylinders must be 100% of the cylinder
minimum test pressure with a tolerance of plus zero to minus 10%; and
    (ii) The rated burst pressure of a rupture disc for a DOT 3HT
cylinder must be 90% of the cylinder minimum test pressure with a
tolerance of plus zero to minus 10%.
    (3) The cylinder must be placed in a rigid outer packaging that--
    (i) Conforms to the requirements of either part 178, subparts L and
M of this subchapter at the Packing Group I or II performance level or
the performance criteria in Air Transport Association (ATA)
Specification No. 300 for a Category I Shipping Container;
    (ii) After September 30, 2009, is capable of passing, as
demonstrated by design testing, the Flame Penetration Resistance Test
in Appendix E to part 178 of this subchapter; and
    (iii) Prior to each shipment, passes a visual inspection that
verifies that all features of the packaging are in good condition,
including all latches, hinges, seams, and other features, and that the
packaging is free from perforations, cracks, dents, or other abrasions
that may negatively affect the flame penetration resistance and thermal
resistance characteristics of the packaging.
    (4) After September 30, 2009, the cylinder and the outer packaging
must be capable of passing, as demonstrated by design testing, the
Thermal Resistance Test specified in Appendix D to part 178 of this
subchapter.
    (5) The cylinder and the outer packaging must both be marked and
labeled in accordance with part 172, subparts D and E of this
subchapter. The additional marking ``DOT31FP,'' is allowed to indicate
that the cylinder and the outer packaging are capable of passing, as
demonstrated by design testing, the Thermal Resistance Test specified
in Appendix D to part 178 of this subchapter.
    (6) A cylinder of compressed oxygen that has been furnished by an
aircraft operator to a passenger in accordance with 14 CFR Sec. Sec.
121.574, 125.219, or 135.91 is excepted from the outer packaging
requirements of paragraph (f)(3) of this section.

Sec.  173.302a  [Amended]

0
7. In Sec.  173.302a, as amended on January 31, 2007, paragraph (f) is
removed.

0
8. In Sec.  173.304, a new paragraph (f) is added to read as follows:

Sec.  173.304  Filling of cylinders with liquefied compressed gases.

* * * * *
    (f) Oxidizing gases by aircraft. A cylinder containing carbon
dioxide and oxygen mixture, compressed; liquefied gas, oxidizing,
n.o.s.; or nitrous oxide is authorized for transportation by aircraft
only when it meets the following requirements:
    (1) Only DOT specification 3A, 3AA, 3AL, 3E, 3HT, and 39 cylinders,
and UN pressure receptacles ISO 9809-1, ISO 9809-2, ISO 9809-3 and ISO
7866 cylinders are authorized.
    (2) Cylinders must be equipped with a pressure relief device in
accordance with Sec.  173.301(f) and, for DOT 39 cylinders offered for
transportation after October 1, 2008, for the other DOT specification
cylinders with the first requalification due after October 1, 2008, or
for the UN pressure receptacles prior to initial use:
    (i) The rated burst pressure of a rupture disc for DOT 3A, 3AA,
3AL, 3E and 39 cylinders, and UN pressure receptacles ISO 9809-1, ISO
9809-2, ISO 9809-3 and ISO 7866 cylinders must be 100% of the cylinder
minimum test pressure with a tolerance of plus zero to minus 10%; and
    (ii) The rated burst pressure of a rupture disc for a DOT 3HT
cylinder must be 90% of the cylinder minimum test pressure with a
tolerance of plus zero to minus 10%.
    (3) The cylinder must be placed in a rigid outer packaging that--
    (i) Conforms to the requirements of either part 178, subparts L and
M, of this subchapter at the Packing Group I or II performance level,
or the

performance criteria in Air Transport Association (ATA) Specification
No. 300 for a Category I Shipping Container;
    (ii) After September 30, 2009, is capable of passing, as
demonstrated by design testing, the Flame Penetration Resistance Test
in part III of Appendix E to part 78 of this subchapter; and
    (iii) Prior to each shipment, passes a visual inspection that
verifies that all features of the packaging are in good condition,
including all latches, hinges, seams, and other features, and the
packaging is free from perforations, cracks, dents, or other abrasions
that may negatively affect the flame penetration resistance and thermal
resistance characteristics of the container.
    (4) After September 30, 2009, the cylinder and the outer packaging
must be capable of passing, as demonstrated by design testing, the
Thermal Resistance Test specified in Appendix D to part 178 of this
subchapter.
    (5) The cylinder and the outer packaging must both be marked and
labeled in accordance with part 172, subparts D and E of this
subchapter. The additional marking ``DOT31FP,'' is allowed to indicate
that the cylinder and the outer packaging are capable of passing, as
demonstrated by design testing, the Thermal Resistance Test specified
in Appendix D to part 178 of this subchapter.
    (6) A cylinder of compressed oxygen that has been furnished by an
aircraft operator to a passenger in accordance with 14 CFR 121.574,
125.219, or 135.91 is excepted from the outer packaging requirements of
paragraph (f)(3) of this section.

Sec.  173.304a  [Amended]

0
9. In Sec.  173.304a, as amended on January 1, 2007, paragraph (f) is
removed.

PART 175--[AMENDED]

0
10. The authority citation for part 175 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

0
11. In Sec.  175.501, as amended on January 1, 2007, paragraph
(e)(5)(i) is revised to read as follows:

Sec.  175.501  Special requirements for oxidizers and compressed
oxygen.

* * * * *
    (e) * * *
    (5) * * *
    (i) Sections 173.302(f) and 173.304(f) of this subchapter, subpart
C of part 172 of this subchapter, and, for passengers only, subpart H
of part 172 of this subchapter;
* * * * *

PART 178--[AMENDED]

0
12. The authority citation for part 178 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

0
13. In appendix D to part 178, as added on January 1, 2007, paragraph
2.2 and paragraph 4.1 are revised to read as follows:

Appendix D to Part 178

Thermal Resistance Test

* * * * *
    2. * * *
    2.2 Thermocouples. At least three thermocouples must be used to
monitor the temperature inside the oven and an additional three
thermocouples must be used to monitor the temperature of the
cylinder. The thermocouples must be \1/16\ inch, ceramic packed,
metal sheathed, type K (Chromel-Alumel), grounded junction with a
nominal 30 American wire gauge (AWG) size conductor. The
thermocouples measuring the temperature inside the oven must be
placed at varying heights to ensure even temperature and proper
heat-soak conditions. For the thermocouples measuring the
temperature of the cylinder: (1) Two of them must be placed on the
outer cylinder side wall at approximately 2 inches (5 cm) from the
top and bottom shoulders of the cylinder; and (2) one must be placed
on the cylinder valve body near the pressure relief device.
Alternatively, the thermocouples may be replaced with other devices
such as a remote temperature sensor, metal fuse on the valve, or
coated wax, provided the device is tested and the test report is
retained for verification. Under this alternative, it is permissible
to record the highest temperature to which the cylinder is subjected
instead of temperature measurements in intervals of not more than
five (5) minutes.
* * * * *
    4. * * *
    4.1 It is recommended that the cylinder be closed at ambient
temperature and configured as when filled with a valve and pressure
relief device. The oxygen generator must be filled with an oxidizing
agent and may be tested with or without packaging.
* * * * *

0
14. A new Appendix E to part 178 is added to read as follows:

Appendix E to Part 178--Flame Penetration Resistance Test

    (a) Criteria for Acceptance. (1) At least three specimens of the
outer packaging materials must be tested;
    (2) Each test must be conducted on a flat 16 inch x 24 inch test
specimen mounted in the horizontal ceiling position of the test
apparatus to represent the outer packaging design;
    (3) Testing must be conducted on all design features (latches,
seams, hinges, etc.) affecting the ability of the outer packaging to
safely prevent the passage of fire in the horizontal ceiling
position; and
    (4) There must be no flame penetration of any specimen within 5
minutes after application of the flame source and the maximum
allowable temperature at a point 4 inches above the test specimen,
centered over the burner cone, must not exceed 205 [deg]C (400
[deg]F).
    (b) Summary of Method. This method provides a laboratory test
procedure for measuring the capability of cargo compartment lining
materials to resist flame penetration with a 2 gallon per hour (GPH)
2 Grade kerosene or equivalent burner fire source. Ceiling
and sidewall liner panels may be tested individually provided a
baffle is used to simulate the missing panel. Any specimen that
passes the test as a ceiling liner panel may be used as a sidewall
liner panel.
    (c) Test Specimens. (1) The specimen to be tested must measure
16 \1/8\ inches (406 3 mm) by 24+\1/8\
inches (610 3 mm).
    (2) The specimens must be conditioned at 70 [deg]F. < plus-
minus>5 [deg]F. (21 [deg]C. 2 [deg]C.) and 55% 5% humidity for at least 24 hours before testing.
    (d) Test Apparatus. The arrangement of the test apparatus must
include the components described in this section. Minor details of
the apparatus may vary, depending on the model of the burner used.
    (1) Specimen Mounting Stand. The mounting stand for the test
specimens consists of steel angles.
    (2) Test Burner. The burner to be used in tesing must--
    (i) Be a modified gun type.
    (ii) Use a suitable nozzle and maintain fuel pressure to yield a
2 GPH fuel flow. For example: An 80 degree nozzle nominally rated at
2.25 GPH and operated at 85 pounds per square inch (PSI) gauge to
deliver 2.03 GPH.
    (iii) Have a 12 inch (305 mm) burner extension installed at the
end of the draft tube with an opening 6 inches (152 mm) high and 11
inches (280 mm) wide.
    (iv) Have a burner fuel pressure regulator that is adjusted to
deliver a nominal 2.0 GPH of 2 Grade kerosene or
equivalent.
    Burner models which have been used successfully in testing are
the Lenox Model OB-32, Carlin Model 200 CRD and Park Model DPL.
    (3) Calorimeter. (i) The calorimeter to be used in testing must
be a total heat flux Foil Type Gardon Gage of an appropriate range
(approximately 0 to 15.0 British thermal unit (BTU) per ft.\2\ sec.,
0-17.0 watts/cm\2\). The calorimeter must be mounted in a 6 inch by
12 inch (152 by 305 mm) by \3/4\ inch (19 mm) thick insulating block
which is attached to a steel angle bracket for placement in the test
stand during burner calibration as shown in Figure 2 of this part of
this appendix.
    (ii) The insulating block must be monitored for deterioration
and the mounting shimmed as necessary to ensure that the calorimeter
face is parallel to the exit plane of the test burner cone.
    (4) Thermocouples. The seven thermocouples to be used for
testing must be

\1/16\ inch ceramic sheathed, type K, grounded thermocouples with a
nominal 30 American wire gage (AWG) size conductor. The seven
thermocouples must be attached to a steel angle bracket to form a
thermocouple rake for placement in the test stand during burner
calibration.
    (5) Apparatus Arrangement. The test burner must be mounted on a
suitable stand to position the exit of the burner cone a distance of
8 inches from the ceiling liner panel and 2 inches from the sidewall
liner panel. The burner stand should have the capability of allowing
the burner to be swung away from the test specimen during warm-up
periods.
    (6) Instrumentation. A recording potentiometer or other suitable
instrument with an appropriate range must be used to measure and
record the outputs of the calorimeter and the thermocouples.
    (7) Timing Device. A stopwatch or other device must be used to
measure the time of flame application and the time of flame
penetration, if it occurs.
    (e) Preparation of Apparatus. Before calibration, all equipment
must be turned on and allowed to stabilize, and the burner fuel flow
must be adjusted as specified in paragraph (d)(2).
    (f) Calibration. To ensure the proper thermal output of the
burner the following test must be made:
    (1) Remove the burner extension from the end of the draft tube.
Turn on the blower portion of the burner without turning the fuel or
igniters on. Measure the air velocity using a hot wire anemometer in
the center of the draft tube across the face of the opening. Adjust
the damper such that the air velocity is in the range of 1550 to
1800 ft./min. If tabs are being used at the exit of the draft tube,
they must be removed prior to this measurement. Reinstall the draft
tube extension cone.
    (2) Place the calorimeter on the test stand as shown in Figure 2
at a distance of 8 inches (203 mm) from the exit of the burner cone
to simulate the position of the horizontal test specimen.
    (3) Turn on the burner, allow it to run for 2 minutes for warm-
up, and adjust the damper to produce a calorimeter reading of 8.0
0.5 BTU per ft.\2\ sec. (9.1 0.6 Watts/
cm\2\).
    (4) Replace the calorimeter with the thermocouple rake.
    (5) Turn on the burner and ensure that each of the seven
thermocouples reads 1700 [deg]F. 100 [deg]F. (927
[deg]C. 38 [deg]C.) to ensure steady state conditions
have been achieved. If the temperature is out of this range, repeat
steps 2 through 5 until proper readings are obtained.
    (6) Turn off the burner and remove the thermocouple rake.
    (7) Repeat (1) to ensure that the burner is in the correct
range.
    (g) Test Procedure. (1) Mount a thermocouple of the same type as
that used for calibration at a distance of 4 inches (102 mm) above
the horizontal (ceiling) test specimen. The thermocouple should be
centered over the burner cone.
    (2) Mount the test specimen on the test stand shown in Figure 1
in either the horizontal or vertical position. Mount the insulating
material in the other position.
    (3) Position the burner so that flames will not impinge on the
specimen, turn the burner on, and allow it to run for 2 minutes.
Rotate the burner to apply the flame to the specimen and
simultaneously start the timing device.
    (4) Expose the test specimen to the flame for 5 minutes and then
turn off the burner. The test may be terminated earlier if flame
penetration is observed.
    (5) When testing ceiling liner panels, record the peak
temperature measured 4 inches above the sample.
    (6) Record the time at which flame penetration occurs if
applicable.
    (h) Test Report. The test report must include the following:
    (1) A complete description of the materials tested including
type, manufacturer, thickness, and other appropriate data.
    (2) Observations of the behavior of the test specimens during
flame exposure such as delamination, resin ignition, smoke, etc.,
including the time of such occurrence.
    (3) The time at which flame penetration occurs, if applicable,
for each of the three specimens tested.

    Issued in Washington, DC, on September 17, 2007 under authority
delegated in 49 CFR part 1.
Krista Edwards,
Acting Administrator.
[FR Doc. E7-19207 Filed 9-27-07; 8:45 am]

BILLING CODE 4910-60-P


[Federal Register Volume 80, Number 129 (Tuesday, July 7, 2015)]
[Notices]
[Pages 38789-38791]
[FR Doc No: 2015-16544]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-75334; File No. SR-MIAX-2015-42]

Self-Regulatory Organizations; Miami International Securities
Exchange LLC; Notice of Filing and Immediate Effectiveness of a
Proposed Rule Change To Amend Its Fee Schedule

June 30, 2015.
    Pursuant to the provisions of 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 June 24, 2015, Miami International Securities
Exchange LLC (``MIAX'' or ``Exchange'') filed with the Securities and
Exchange Commission (``Commission'') a proposed rule change as
described in Items I, II, and III below, which Items have been prepared
by the Exchange. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

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

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

    The Exchange is filing a proposal to amend the MIAX Options Fee
Schedule.
    The text of the proposed rule change is available on the Exchange's
Web site at http://www.miaxoptions.com/filter/wotitle/rule_filing, at
MIAX's principal office, and at the Commission's Public Reference Room.

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

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

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

1. Purpose
    The Exchange proposes to amend its current MIAX Market Maker \3\
sliding scale for transaction fees to: (i) Modify the volume thresholds
in tiers 3, 4; \4\ (ii) increase the transaction fee for volume tier 2;
\5\ and (iii) increase the Priority Customer rebate incentive for tier
2.
---------------------------------------------------------------------------

    \3\ ``MIAX Market Maker'' for purposes of the proposed sliding
scale means any MIAX Market Maker including RMM, LMM, PLMM, DLMM,
and DPLMM.
    \4\ The Commission notes that the Exchange proposes to change
the Percentage Thresholds of National Market Maker Volume for tier 3
from ``Above 0.50%-0.80%'' to ``Above 0.50%-1.00%'' and for tier 4
from ``Above 0.80%-1.50%'' to ``Above 1.00%-1.50%.''
    \5\ The Commission notes that the Exchange proposes to increase
the transaction fee for tier 2 from $0.17 to $0.19 for Penny Classes
and from $0.21 to $0.23 for Non-Penny Classes.
---------------------------------------------------------------------------

    The sliding scale for MIAX Market Maker transaction fees is based
on the substantially similar fees of the Chicago Board Options
Exchange, Incorporated (``CBOE'').\6\ Specifically, the program reduces
a MIAX Market Maker's per contract transaction fee based on percentages
of total national Market Maker volume of any options classes that trade
on the exchange during the calendar month, based on the following
scale:
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release Nos. 55193 (January 30,
2007), 72 FR 5476 (February 6, 2007) (SR-CBOE-2006-111); 57191
(January 24, 2008), 73 FR 5611 (January 30, 2008); 58321 (August 6,
2008), 73 FR 46955 (SR-CBOE-2008-78). See also CBOE Fees Schedule,
p. 3.

----------------------------------------------------------------------------------------------------------------
                                                                                Per contract fee
                    Tier                     Percentage of national Market   Per contract fee    for non-penny
                                                      Maker volume          for penny classes       classes
----------------------------------------------------------------------------------------------------------------
1..........................................  0.00%-0.05%..................              $0.25              $0.29
2..........................................  Above 0.05%-0.50%............               0.19               0.23
3..........................................  Above 0.50%-1.00%............               0.12               0.16
4..........................................  Above 1.00%-1.50%............               0.07               0.11
5..........................................  Above 1.50%..................               0.05               0.09
----------------------------------------------------------------------------------------------------------------

    The sliding scale would apply to all MIAX Market Makers for
transactions in all products except mini-options. A MIAX Market Maker's
initial $0.25 per contract rate in Penny Pilot classes and $0.29 per
contract in non-Penny Pilot classes will be reduced if the MIAX Market
Maker reaches the volume thresholds set forth in the sliding scale in a
month. As a MIAX Market Maker's monthly volume increases, its per
contract transaction fee would decrease. The Market Maker sliding scale
will continue to apply to MIAX Market Maker (RMM, LMM, DLMM, PLMM,
DPLMM) transaction fees in all products except mini-options. MIAX
Market Makers will continue to be assessed a $0.02 per executed
contract fee for transactions in mini-options.
    The Exchange believes the proposed sliding scale is objective in
that the fee reductions are based solely on reaching stated volume
thresholds. The specific volume thresholds of the tiers were set based
upon business determinations and an analysis of current volume levels.
The specific volume thresholds and rates were set in order to encourage
MIAX Market Makers to reach for higher tiers. The Exchange believes
that the proposed changes to the tiered fee schedule may incent firms
to display their orders on the Exchange and increase the volume of
contracts traded here.
    As mentioned above, the Exchange notes that the proposed sliding
fee scale for MIAX Market Makers structured on contract volume
thresholds is based on the substantially similar fees of the CBOE.\7\
The Exchange also notes that a number of other exchanges have tiered
fee schedules which offer different transaction fee rates depending on
the monthly ADV of liquidity providing executions on their
facilities.\8\
---------------------------------------------------------------------------

    \7\ See Securities Exchange Act Release Nos. 55193 (January 30,
2007), 72 FR 5476 (February 6, 2007) (SR-CBOE-2006-111); 58321
(August 6, 2008), 73 FR 46955 (SR-CBOE-2008-78); 71295 (January 14,
2014), 79 FR 3443 (January 21, 2014) (SR-CBOE-2013-129). The
Exchange notes that CBOE does not charge market makers a
differentiated transaction fee for non-Penny Pilot option classes.
    \8\ See, e.g., International Securities Exchange, LLC, Schedule
of Fees, Section IV, C; NASDAQ Options Market, Chapter XV, Section
2.
---------------------------------------------------------------------------

    The Exchange also proposes to increase the rebate incentive for
Priority Customer orders to correspond with the increase in the
transaction fee for tier 2 of the MIAX Market Maker sliding scale. The
Exchange offers MIAX Market Makers the opportunity to reduce
transaction fees by $0.02 per contract in

standard options if the Member or its affiliates of at least 75% common
ownership between the firms as reflected on each firm's Form BD,
Schedule A, qualifies in a given month for Priority Customer Rebate
Program volume tiers 3, 4, or 5 in the Fee Schedule. The Exchange
proposes to amend the rebate incentive for Priority Customer orders in
order to increase the rebate incentive for tier 2 to correspond with
the increase in transaction fees for volume tier 2 of the MIAX Market
Maker sliding scale. As proposed, any Member or its affiliates of at
least 75% common ownership between the firms as reflected on each
firm's Form BD, Schedule A, that qualifies for Priority Customer Rebate
Program volume tiers 3, 4, or 5 and is a MIAX Market Maker will be
assessed $0.23 per contract for tier 1, $0.17 per contract for tier 2,
$0.10 per contract for tier 3, $0.05 per contract for tier 4, and $0.03
per contract for tier 5 for transactions in standard options Penny
Pilot classes in lieu of the applicable transaction fees in the Market
Maker sliding scale. Any Member or its affiliates of at least 75%
common ownership between the firms as reflected on each firm's Form BD,
Schedule A, that qualifies for Priority Customer Rebate Program volume
tiers 3, 4, or 5 will be assessed $0.27 per contract for tier 1, $0.21
per contract for tier 2, $0.14 per contract for tier 3, $0.09 per
contract for tier 4, and $0.07 per contract for tier 5 for transactions
in standard options in non-Penny Pilot classes in lieu of the
applicable transaction fees in the Market Maker sliding scale. The
Exchange believes that these incentives will encourage MIAX Market
Makers to transact a greater number of orders on the Exchange.
    The proposed changes will become operative on July 1, 2015.
2. Statutory Basis
    The Exchange believes that its proposal to amend its fee schedule
is consistent with Section 6(b) of the Act \9\ in general, and furthers
the objectives of Section 6(b)(4) of the Act \10\ in particular, in
that it is an equitable allocation of reasonable fees and other charges
among Exchange members.
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(4).
---------------------------------------------------------------------------

    The proposed volume based discount fee structure is not
discriminatory in that all MIAX Market Makers are eligible to submit
(or not submit) liquidity, and may do so at their discretion in the
daily volumes they choose during the course of the billing period. All
similarly situated MIAX Market Makers are subject to the same fee
structure, and access to the Exchange is offered on terms that are not
unfairly discriminatory. Volume based discounts have been widely
adopted by options and equities markets, and are equitable because they
are open to all MIAX Market Makers on an equal basis and provide
discounts that are reasonably related to the value of an exchange's
market quality associated with higher volumes. The proposed fee levels
and volume thresholds are reasonably designed to be comparable to those
of other options exchanges employing similar fee programs, and also to
attract additional liquidity and order flow to the Exchange.
    The Exchange's proposal to provide MIAX Market Makers the
opportunity to reduce transaction fees by $0.02 per contract in
standard options, provided certain criteria are met, is reasonable
because the Exchange desires to offer all such market participants an
opportunity to lower their transaction fees. The Exchange's proposal to
offer MIAX Market Makers the opportunity to reduce transaction fees by
$0.02 per contract in standard options, provided certain criteria are
met, is equitable and not unfairly discriminatory because the Exchange
offers all market participants, excluding Priority Customers, a means
to reduce transaction fees by qualifying for volume tiers in the
Priority Customer Rebate Program. The Exchange believes that offering
all such market participants the opportunity to lower transaction fees
by incentivizing them to transact Priority Customer order flow in turn
benefits all market participants.
    The Exchange believes that its proposal to assess transaction fees
in non-Penny Pilot options classes, which differs from Penny Pilot
options classes, is consistent with other options markets that also
assess different transaction fees for non-Penny Pilot options classes
as compared to Penny Pilot options classes. The Exchange believes that
establishing different pricing for non-Penny Pilot options and Penny
Pilot options is reasonable, equitable, and not unfairly discriminatory
because Penny Pilot options are more liquid options as compared to non-
Penny Pilot options. Additionally, other competing options exchanges
differentiate pricing in a similar manner today in other types of
transaction fees.\11\
---------------------------------------------------------------------------

    \11\ See NASDAQ OMX PHLX LLC Pricing Schedule, Section II
(assessing differentiated transaction fees for Penny Pilot and non-
Penny Pilot options classes); NYSE Amex Options Fee Schedule, p. 6
(assessing differentiated transaction fees for Penny Pilot and non-
Penny Pilot options classes); Chicago Board Options Exchange,
Incorporated, Fee Schedule, p. 1 (assessing differentiated
transaction fees for Penny Pilot and non-Penny Pilot options
classes). See also Securities Exchange Act Release No. 68556
(January 2, 2013), 78 FR 1293 (January 8, 2013) (SR-BX-2012-074).
Please note that neither of these exchanges currently has
differentiated pricing for non-Penny Pilot options classes in a
tiered volume scale for market makers.
---------------------------------------------------------------------------

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

    The Exchange does not believe that the proposed rule change will
impose any burden on competition not necessary or appropriate in
furtherance of the purposes of the Act. The Exchange notes that it
operates in a highly competitive market in which market participants
can readily favor competing venues if they deem fee levels at a
particular venue to be excessive. In such an environment, the Exchange
must continually adjust its fees to remain competitive with other
exchanges and to attract order flow. The Exchange believes that the
proposed rule change reflects this competitive environment because it
modifies the Exchange's fees in a manner that encourages market
participants to provide liquidity and to send order flow to the
Exchange.

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

    Written comments were neither solicited nor received.

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

    The foregoing rule change has become effective pursuant to Section
19(b)(3)(A)(ii) of the Act.\12\ 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. If the Commission takes such action, the
Commission shall institute proceedings to determine whether the
proposed rule should be approved or disapproved.
---------------------------------------------------------------------------

    \12\ 15 U.S.C. 78s(b)(3)(A)(ii).
---------------------------------------------------------------------------

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_ADDRESS>Please include
File Number SR-MIAX-2015-42 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields,
Secretary, Securities and Exchange Commission, 100 F Street NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-MIAX-2015-42. 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 Web site (http://www.sec.gov/rules/sro.shtml).
    Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for Web site viewing and printing in
the Commission's Public Reference Room, 100 F Street NE., Washington,
DC 20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of such filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-MIAX-2015-42, and should be
submitted on or before July 28, 2015.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\13\
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    \13\ 17 CFR 200.30-3(a)(12).
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Robert W. Errett,
Deputy Secretary.
[FR Doc. 2015-16544 Filed 7-6-15; 8:45 am]
BILLING CODE 8011-01-P