[Federal Register Volume 80, Number 42 (Wednesday, March 4, 2015)]
[Proposed Rules]
[Pages 11610-11611]
[FR Doc No: 2015-04399]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52, 62 and 70

[EPA-R07-OAR-2015-0006; FRL 9923-67-Region 7]

Approval and Promulgation of Air Quality Implementation Plans,
State Plans for Designated Facilities and Pollutants, and Operating
Permits Program; State of Missouri

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve revisions to the State Implementation Plan (SIP) and the
operating permits program for the State of Missouri which were received
on November 6, 2013, November 20, 2014, March 27, 2014, July 7, 2014,
and July 14, 2014. The revisions submitted by the state include
amendments to rules relating to reference methods, definitions and
common reference tables, ambient air quality standards, and a rule
rescission related to air quality control measures for sources
clustered in small land areas. Many of the revisions are administrative
in nature and either incorporate by reference or update state rules to
match Federal regulations. Some are more substantive, but are non-
controversial. In addition, they provide more clarity for the regulated
public. This direct final action will amend the SIP to include revised
regulations which will then be more consistent with Federal
regulations. These revisions do not have an adverse effect on air
quality. EPA's proposed approval of these rule revisions is being done
in accordance with the requirements of the Clean Air Act (CAA).

DATES: Comments on this proposed action must be received in writing by
April 3, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2015-0006, by mail to Amy Bhesania, Environmental Protection
Agency, Air Planning and Development Branch, 11201 Renner Boulevard,
Lenexa, Kansas 66219. Comments may also be submitted electronically or
through hand delivery/courier by following the detailed instructions in
the ADDRESSES section of the direct final rule located in the rules
section of this Federal Register.

FOR FURTHER INFORMATION CONTACT: Amy Bhesania, Environmental Protection
Agency, Air Planning and Development Branch, 11201 Renner Boulevard,
Lenexa, Kansas 66219 at<PHONE_NUMBER>, or by email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: EPA is proposing to approve revisions to the
State Implementation Plan (SIP), the 40 CFR part 62 state plans
(111(d)), and the 40 CFR part 70 operating permits program, for the
State of Missouri's requests to amend the following rules:

1. 10 CSR 10-6.040, Reference Methods, received November 6, 2013.
2. 10 CSR 10-6.040, Reference Methods, received November 20, 2014.
3. 10 CSR 10-6.020, Definitions and Common Reference Tables,
received March 27, 2014.
4. 10 CSR 10-5.240, Additional Air Quality Control Measures May be
Required When Sources are Clustered in a Small Land Area, received
July 7, 2014.
5. 10 CSR 10-6.010, Air Quality Standards, received July 14, 2014.

    The revisions submitted by the state include revisions to update
standards and reference methods, to clarify, add or amend definitions
and reference tables, to rescind an outdated rule, and to update and
clarify ambient air quality standards. For more information on the
state's submissions, specific revisions to each rule and EPA's review
of the revisions, see the Technical Support Document (TSD) that is a
part of this docket.
    In the final rules section of this Federal Register, EPA is
approving the state's SIP revision as a direct final rule without prior
proposal because the Agency views this as a noncontroversial revision
amendment and anticipates no relevant adverse comments to this action.
A detailed rationale for the approval is set forth in the direct final
rule. If no relevant adverse comments are received in response to this
action, no further activity is contemplated in relation to this action.
If EPA receives relevant adverse comments, the direct final rule will
be withdrawn and all public comments received will be addressed in a
subsequent final rule based on this proposed action. EPA will not
institute a second comment period on this action. Any parties
interested in commenting on this action should do so at this time.
Please note that if EPA receives adverse comment on part of this rule
and if that part can be severed from the remainder of the rule, EPA may
adopt as final those parts of the rule that are not the subject of an
adverse comment. For additional information, see the direct final rule
which is located in the rules section of this Federal Register.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

40 CFR Part 62

    Environmental protection, Air pollution control, Administrative
practice and procedure, Intergovernmental relations, Reporting and
recordkeeping requirements.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Operating permits,
Reporting and recordkeeping requirements.

    Dated: February 13, 2015.
Karl Brooks,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR parts 52, 62, and 70 as set
forth below: Chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart AA--MISSOURI

0
2. In Sec.  52.1320 the table in paragraph (c) is amended by:
0
a. Removing under Chapter 5, the entry for ``10-5.240''; and
0
b. Revising under Chapter 6, the entries for ``10-6.010'', ``10-
6.020'', and ``10-6.040''.

    The revisions read as follows:

Sec.  52.1320  Identification of Plan.

* * * * *
    (c) * * *

                                        EPA-Approved Missouri Regulations
----------------------------------------------------------------------------------------------------------------
                                                             State
       Missouri citation                 Title          effective date  EPA Approval date       Explanation
----------------------------------------------------------------------------------------------------------------
                                    Missouri Department of Natural Resources
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
    Chapter 6--Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control
                                      Regulations for the State of Missouri
----------------------------------------------------------------------------------------------------------------
10 CSR 10-6.010...............  Ambient Air Quality            7/30/14  [date of           Hydrogen Sulfide and
                                 Standards.                              publication of     Sulfuric Acid state
                                                                         final rule] and    standards are not
                                                                         [Insert Federal    SIP approved.
                                                                         Register
                                                                         citation].
10 CSR 10-6.020...............  Definitions and Common         3/30/14  [date of           Many of the
                                 Reference Tables.                       publication of     definitions pertain
                                                                         final rule] and    to Title V, 111(d)
                                                                         [Insert Federal    and asbestos
                                                                         Register           programs and are
                                                                         citation].         approved in the SIP
                                                                                because they provide
                                                                                overall consistency
                                                                                in the use of terms
                                                                                in the air program.
                                                                                Similarly, the EPA
                                                                                has also approved
                                                                                this rule as part of
                                                                                the Title V program,
                                                                                and 111(d) even
                                                                                though many of the
                                                                                definitions pertain
                                                                                only to the SIP.

                                                  * * * * * * *
10 CSR 10-6.040...............  Reference Methods.....        11/30/14  [date of
                                                                         publication of
                                                                         final rule] and
                                                                         [Insert Federal
                                                                         Register
                                                                         citation].

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
3. The authority citation for part 62 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart AA--Missouri

* * * * *
0
4. Section 62.6350 is amended by adding paragraph (b)(6) to read as
follows:

Sec.  62.6350  Identification of plan.

* * * * *
    (b) * * *
    (6) A revision to Missouri's 111(d) plan to incorporate state
regulation 10 CSR 10-6.020 Definitions and Common Reference Tables was
state effective March 30, 2014. The effective date of the amended plan
is [60 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal
Register].
* * * * *

PART 70--STATE OPERATING PERMIT PROGRAMS

0
5. The authority citation for part 70 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

0
6. Appendix A to part 70 is amended by adding paragraph (cc) under
Missouri to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs

* * * * *

Missouri

* * * * *
    (cc) The Missouri Department of Natural Resources submitted
revisions to Missouri rule 10 CSR 10-6.020, ``Definitions and Common
Reference Tables'' on March 27, 2014. The state effective date is
March 30, 2014. This revision is effective [60 DAYS AFTER DATE OF
PUBLICATION OF FINAL RULE IN THE Federal Register].
* * * * *
[FR Doc. 2015-04399 Filed 3-3-15; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: April 21, 2008 (Volume 73, Number 77)]
[Rules and Regulations]
[Page 21237-21240]
[DOCID:fr21ap08-10]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2007-29029; Directorate Identifier 2007-NM-175-AD;
Amendment 39-15477; AD 2008-08-23]
RIN 2120-AA64

Airworthiness Directives; Boeing Model 737-200C Series Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: We are adopting a new airworthiness directive (AD) for all
Boeing Model 737-200C series airplanes. This AD requires revising the
FAA-approved maintenance inspection program to include inspections that
will give no less than the required damage tolerance rating for each
structural significant item (SSI), doing repetitive inspections to
detect cracks of all SSIs, and repairing cracked structure. This AD
results from a report of incidents involving fatigue cracking in
transport category airplanes that are approaching or have exceeded
their design service objective. We are issuing this AD to maintain the
continued structural integrity of the entire fleet of Model 737-200C
series airplanes.

DATES: This AD is effective May 27, 2008.
    The Director of the Federal Register approved the incorporation by
reference

of a certain publication listed in this AD as of May 27, 2008.

ADDRESSES: For service information identified in this AD, contact
Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-
2207.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://
www.regulations.gov; or in person at the Docket Management Facility
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The address for the
Docket Office (telephone<PHONE_NUMBER>) is the Document Management
Facility, U.S. Department of Transportation, Docket Operations, M-30,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Nancy Marsh, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
917-6440; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to include an airworthiness directive (AD) that would apply to
all Boeing Model 737-200C series airplanes. That NPRM was published in
the Federal Register on August 23, 2007 (72 FR 48243). That NPRM
proposed to require revising the FAA-approved maintenance inspection
program to include inspections that will give no less than the required
damage tolerance rating for each structural significant item (SSI),
doing repetitive inspections to detect cracks of all SSIs, and
repairing cracked structure.

Comments

    We gave the public the opportunity to participate in developing
this AD. We considered the comments received from the one commenter.

Request To Allow Alternative Inspections for Previously Repaired/
Altered Structure

    Boeing requests that the NPRM be revised to include a provision for
alternative inspections when a repair area prohibits operators from
doing the inspections specified in paragraph (h) of the NPRM. Boeing
requests that the initial alternative inspection be done within 12
months after the repair is discovered during the initial inspection
required by paragraph (h). Boeing points out that a similar provision
was provided in paragraph (e) of AD 98-11-04 R1, amendment 39-10984 (64
FR 987, January 7, 1999). Boeing states that including such a provision
will assist operators.
    We agree. We have added a new paragraph (i) to this AD (and
reidentified subsequent paragraphs) that provides alternative
inspections to those in paragraph (h) of this AD.

Request To Clarify Certain Sections of the Preamble of the NPRM

    Boeing requests that certain sections in the preamble of the NPRM
be clarified for the following reasons:
    1. Boeing states that Advisory Circular (AC) No. 91-56,
``Supplemental Structural Inspection Program for Large Transport
Category Airplanes,'' dated May 6, 2001, applies to airplanes certified
under the fail-safe and fatigue requirements of Civil Air Regulations
(CAR) 4b or part 25 of the Federal Aviation Regulations (14 CFR part
25), not damage tolerance structural requirements as stated in the
``Issuance of Advisory Circular (AC)'' section.
    2. Boeing notes that the ``Other Relevant Rulemaking'' section
identifies the strut as one of the affected SSIs for Model 737-100, -
200, and -200C series airplanes. Boeing states that those airplanes do
not have an engine strut.
    3. Boeing states that Boeing Document D6-37089, ``Supplemental
Structural Inspection Document for Model 737-100/200/200C Airplanes,''
Revision E, dated May 2007 (referred to in the NPRM as the appropriate
source of service information for the required actions), does not
describe procedures for repairing cracked structure, as specified in
the ``Relevant Service Information'' section.
    We agree with Boeing that the identified sections could be
clarified. For the first two items we agree with Boeing's statements.
On the third item, while the document does not specify individual
repair procedures for each specific SSI, it does specify that all
repairs must be approved. However, no change has been made to the final
rule since the identified sections of the NPRM do not reappear in the
final rule.

Explanation of Change to Reported Incidents

    We have revised the AD to specify that this AD results from a
report of incidents involving fatigue cracking only.

Explanation of Change to Costs of Compliance

    The requirements for the baseline structure of Model 737-200C
series airplanes are currently described in 14 CFR 121.1109(c)(1) and
129.109(b)(1), not in 14 CFR 121.370(a) and 129.16 as indicated in the
third paragraph of the Cost of Compliance section of the NPRM.
Therefore, we have revised the Costs of Compliance section of the AD
accordingly.

Conclusion

    We reviewed the relevant data, considered the comments received,
and determined that air safety and the public interest require adopting
the AD with the changes described previously. We also determined that
these changes will not increase the economic burden on any operator or
increase the scope of the AD.

Costs of Compliance

    There are about 49 airplanes of the affected design in the
worldwide fleet. The following table provides the estimated costs for
U.S. operators to comply with this AD.

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Number of U.S.-
            Action                Work hours     Average labor        Cost         registered       Fleet cost
                                                 rate per hour                      airplanes
----------------------------------------------------------------------------------------------------------------
Revision of maintenance        1,000, per                  $80  $80,000 per                   9  $240,000.
 inspection program.            operator (3                      operator.
                                U.S.
                                operators).
Inspections..................  500 per                      80  $40,000, per                  9  $360,000, per
                                airplane.                        airplane, per                    inspection
                                                                 inspection                       cycle.
                                                                 cycle.
----------------------------------------------------------------------------------------------------------------

    The number of work hours, as indicated above, is presented as if
the accomplishment of the actions in this AD is to be conducted as
``stand alone'' actions. However, in actual practice, these actions for
the most part will be done coincidentally or in combination with
normally scheduled airplane inspections and other maintenance program
tasks. Therefore, the actual number of necessary additional work hours
will be minimal in many instances. Additionally, any costs associated
with special airplane scheduling will be minimal.
    Further, compliance with this AD will be a means of compliance with
the aging airplane safety final rule (AASFR) for the baseline structure
of Model 737-200C series airplanes. The AASFR final rule requires
certain operators to incorporate damage tolerance inspections into
their maintenance inspection programs. These requirements are described
in 14 CFR 121.1109(c)(1) and 129.109(b)(1). Accomplishment of the
actions required by this AD will meet the requirements of these CFR
sections for the baseline structure. The costs for accomplishing the
inspection portion of this AD were accounted for in the regulatory
evaluation of the AASFR final rule.

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.
    We are 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

    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) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979), 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.
    You can find our regulatory evaluation and the estimated costs of
compliance in the AD Docket.

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

0
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 adding the following new AD:

2008-08-23 Boeing: Amendment 39-15477. Docket No. FAA-2007-29029;
Directorate Identifier 2007-NM-175-AD.

Effective Date

    (a) This airworthiness directive (AD) is effective May 27, 2008.

Affected ADs

    (b) Accomplishing the actions required by paragraph (g) and the
initial inspections required by paragraph (h) of this AD ends the
requirements of AD 98-11-04 R1, amendment 39-10984, for Model 737-
200C series airplanes only. Operators of Model 737-100 and -200
series airplanes must continue to do the actions required by AD 98-
11-04 R1.

Applicability

    (c) This AD applies to all Boeing Model 737-200C series
airplanes, certificated in any category.

Unsafe Condition

    (d) This AD results from a report of incidents involving fatigue
cracking in transport category airplanes that are approaching or
have exceeded their design service objective. We are issuing this AD
to maintain the continued structural integrity of the entire fleet
of Model 737-200C series airplanes.

Compliance

    (e) You are responsible for having the actions required by this
AD performed within the compliance times specified, unless the
actions have already been done.

Service Information

    (f) The term ``Revision E,'' as used in this AD, means Boeing
Document D6-37089, ``Supplemental Structural Inspection Document for
Model 737-100/200/200C Airplanes,'' Revision E, dated May 2007.

Revision of the FAA-Approved Maintenance Inspection Program

    (g) At the applicable time specified in Table 1 of this AD,
incorporate a revision into the FAA-approved maintenance inspection
program that provides no less than the required damage tolerance
rating (DTR) for each structural significant item (SSI) listed in
Revision E. (The required DTR value for each SSI is listed in
Revision E.) The revision to the maintenance inspection program must
include and must be implemented in accordance with the procedures in
Section 5.0, ``Damage Tolerance Rating (DTR) System Application,''
and Section 6.0, ``SSI Discrepancy Reporting'' of Revision E. Under
the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements contained in this
AD and has assigned OMB Control Number 2120-0056.

  Table 1.--Compliance Time for Revising Maintenance Inspection Program
------------------------------------------------------------------------
     For airplanes with SSIs--                 Compliance time
------------------------------------------------------------------------
(1) Affected by the cargo           Before the accumulation of 46,000
 configuration.                      total flight cycles, or within 12
                                     months after the effective date of
                                     this AD, whichever occurs later.
(2) Not affected by the cargo       Before the accumulation of 66,000
 configuration.                      total flight cycles, or within 12
                                     months after the effective date of
                                     this AD, whichever occurs later.
------------------------------------------------------------------------

Initial and Repetitive Inspections

    (h) Except as provided by paragraph (i) of this AD: At the
applicable time specified in Table 2 of this AD, do the applicable
initial inspections to detect cracks of all SSIs, in accordance with
Revision E. Repeat the applicable inspections thereafter at the
intervals specified in Section 3.0, ``Implementation'' of Revision
E.

            Table 2.--Compliance Time for Initial Inspections
------------------------------------------------------------------------
     For airplanes with SSIs--                 Compliance time
------------------------------------------------------------------------
(1) Affected by the cargo           Before the accumulation of 46,000
 configuration.                      total flight cycles, or within
                                     4,000 flight cycles measured from
                                     12 months after the effective date
                                     of this AD, whichever occurs later.
(2) Not affected by the cargo       Before the accumulation of 66,000
 configuration.                      total flight cycles, or within
                                     4,000 flight cycles measured from
                                     12 months after the effective date
                                     of this AD, whichever occurs later.
------------------------------------------------------------------------

    (i) For any SSI that has been repaired or altered before the
effective date of this AD such that the repair or design change
affects your ability to accomplish the actions required by paragraph
(h) of this AD: You must request FAA approval of an alternative
method of compliance (AMOC) in accordance with section 39.17 of the
Federal Aviation Regulations (14 CFR 39.17), at the initial
compliance time specified in paragraph (h) of the AD; or do the
actions specified in paragraphs (i)(1) and (i)(2) of this AD, at the
times specified in those paragraphs, as an approved means of
compliance with the requirements of paragraph (h) of this AD.
    (1) At the initial compliance time specified in paragraph (h) of
the AD, identify each repair or design change to that SSI.
    (2) Within 12 months after the identification of a repair or
design change required by paragraph (i)(1) of this AD, assess the
damage tolerance characteristics of each SSI affected by each repair
or design change to determine the effectiveness of the applicable
SSID inspection for that SSI and if not effective, incorporate a
revision into the FAA-approved maintenance inspection program to
include a damage-tolerance based alternative inspection program for
each affected SSI. Thereafter, inspect the affected structure in
accordance with the alternative inspection program. The inspection
method and compliance times (i.e., threshold and repeat intervals)
of the alternative inspection program must be approved in accordance
with the procedures specified in paragraph (l) of this AD.

Repair

    (j) If any cracked structure is found during any inspection
required by paragraph (h) or (i) of this AD, before further flight,
repair the cracked structure using a method approved in accordance
with the procedures specified in paragraph (l) of this AD.

Inspection Program for Transferred Airplanes

    (k) Before any airplane that is subject to this AD and that has
exceeded the applicable compliance times specified in paragraph (h)
of this AD can be added to an air carrier's operations
specifications, a program for the accomplishment of the inspections
required by this AD must be established in accordance with paragraph
(k)(1) or (k)(2) of this AD, as applicable.
    (1) For airplanes that have been inspected in accordance with
this AD: The inspection of each SSI must be done by the new operator
in accordance with the previous operator's schedule and inspection
method, or the new operator's schedule and inspection method, at
whichever time would result in the earlier accomplishment for that
SSI inspection. The compliance time for accomplishment of this
inspection must be measured from the last inspection accomplished by
the previous operator. After each inspection has been done once,
each subsequent inspection must be performed in accordance with the
new operator's schedule and inspection method.
    (2) For airplanes that have not been inspected in accordance
with this AD: The inspection of each SSI required by this AD must be
done either before adding the airplane to the air carrier's
operations specification, or in accordance with a schedule and an
inspection method approved by the Manager, Seattle Aircraft
Certification Office (ACO), FAA. After each inspection has been done
once, each subsequent inspection must be done in accordance with the
new operator's schedule.

Alternative Methods of Compliance (AMOCs)

    (l)(1) The Manager, Seattle ACO has the authority to approve
AMOCs for this AD, if requested in accordance with the procedures
found in 14 CFR 39.19.
    (2) To request a different method of compliance or a different
compliance time for this AD, follow the procedures in 14 CFR 39.19.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your appropriate principal inspector (PI) in the FAA
Flight Standards District Office (FSDO), or lacking a PI, your local
FSDO.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair required by this AD, if it is approved by an
Authorized Representative for the Boeing Commercial Airplanes
Delegation Option Authorization Organization who has been authorized
by the Manager, Seattle ACO, to make those findings. For a repair
method to be approved, the repair approval must specifically refer
to this AD.

Material Incorporated by Reference

    (m) You must use Boeing Document D6-37089, ``Supplemental
Structural Inspection Document for Model 737-100/200/200C
Airplanes,'' Revision E, dated May 2007, to do the actions required
by this AD, unless the AD specifies otherwise.
    (1) The document contains the following errors:
    (i) Pages 2.0.3 and 2.0.4, Revision D, of Section 2.0 and pages
F-14.5, Revision D, and F-14.6, Revision Blank, of Section 8.2
exist; but are not specified in the List of Effective Pages.
    (ii) Pages 7.0.43 through 7.0.46 inclusive of Section 7.0 and
pages W.34.1 and W.34.2 of Section 11.1, as specified in the List of
Effective Pages, do not exist.
    (iii) The List of Effective Pages specifies incorrect revision
levels for certain pages; the revision levels specified on each page
are correct.
    (iv) None of the pages are dated. The issue date for each
revision is specified in the Revision Highlights section.
    (2) The Director of the Federal Register approved the
incorporation by reference of this service information under 5
U.S.C. 552(a) and 1 CFR part 51.
    (3) For service information identified in this AD, contact
Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington
98124-2207.
    (4) You may review copies of the service information
incorporated by reference at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
National Archives and Records Administration (NARA). For information
on the availability of this material at NARA, call<PHONE_NUMBER>, or
go to: http://www.archives.gov/federal_register/code_of_federal_
regulations/ibr_locations.html.

    Issued in Renton, Washington, on April 8, 2008.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. E8-8320 Filed 4-18-08; 8:45 am]

BILLING CODE 4910-13-P


[Federal Register Volume 76, Number 187 (Tuesday, September 27, 2011)]
[Rules and Regulations]
[Pages 59574-59578]
[FR Doc No: 2011-24818]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 40

[Docket DOT-OST-2010-0161]
RIN 2105-AE13

Procedures for Transportation Workplace Drug and Alcohol Testing
Programs: Federal Drug Testing Custody and Control Form; Technical
Amendment

AGENCY: Office of the Secretary, DOT.

ACTION: Final Rule; Technical Amendment.

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SUMMARY: On September 27, 2010, the U.S. Department of Transportation
(DOT) published an interim final rule (IFR) authorizing the use of a
new Federal Drug Testing Custody and Control Form (CCF) in its drug
testing program. Use of the form is authorized beginning October 1,
2010. This final rule responds to comments to the IFR and will finalize
the authorization and procedures for using the new CCF for DOT-required
drug tests. The intended effect of this final rule is to finalize the
authority for use of the new CCF and to make a technical amendment to
its drug testing procedures by amending a provision of the rule which
was inadvertently omitted from a final rule in August 2010. The
September 27, 2010 final rule was published under RIN 2105-AE03,
however, it was inadvertently shown as a completed action on the Fall
2010 Agenda; this action replaces RIN 2105-AE03.

DATES: The rule is effective September 27, 2011.

FOR FURTHER INFORMATION CONTACT: Bohdan Baczara, U.S. Department of
Transportation, Office of Drug and Alcohol Policy and Compliance, 1200
New Jersey Avenue, SE., Washington, DC 20590;<PHONE_NUMBER> (voice),
202-366-3897 (fax), or<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

Background and Purpose

    All urine specimens collected under the DOT drug testing
regulation, 49 CFR Part 40, must be collected using chain-of-custody
procedures that incorporate the use of the CCF promulgated by the
Department of Health and Human Services (HHS). On November 17, 2009,
HHS published a proposal to revise the CCF [74 FR 59196]. In their
proposal, HHS stated that the CCF is used for the Federal workplace
drug testing program, but also pointed out that DOT ``* * *requires its
regulated industries to use the Federal CCF'' [74 FR 59196]. Because
many of the commentors to the HHS proposal were transportation industry
employers, Consortia/Third-party Administrators (C/TPAs), and
associations, the Department was confident the commentors understood
the new CCF would be used in the DOT-regulated program. All the
comments submitted were thoroughly reviewed by HHS and taken into
consideration in fashioning the new CCF. The Department worked closely
with HHS on the new CCF. HHS announced the new CCF in the Federal
Register [75 FR 41488]. The CCF became effective date of October 1,
2010.
    However, because of the short time frame between the HHS
publication of the new CCF and its October 1, 2010 effective date, the
Department did not have an opportunity to propose a rulemaking and
therefore issued an Interim Final Rule (IFR) on September 27, 2010 [75
FR 59105] authorizing DOT-regulated employers to also begin using the
new CCF on October 1, 2010. The Department sought comments only on the
actual implementation of the new CCF, and not on the form itself
because HHS already sought and received comments on the form and its
use because many of the commentors to the HHS proposal were
transportation industry employers, C/TPAs, and associations. In the
IFR, the Department made minor procedural amendments to the regulation
to merely reflect the changes HHS made to the revised CCF, and
clarified how collectors, laboratories, and medical review officers
(MROs) must use the new form in the DOT regulated context. There were
15 comments from four commentors.
    The Department is also making a technical amendment to address an
omission in the rule text of a final rule published on August 16, 2010
[75 FR

49850]. Specifically, we had removed the requirement in Sec.  40.121(d)
for the MRO to complete continuing education units to satisfy the
requalification training requirement but we failed to amend the
definition of ``Continuing education'' in Sec.  40.3 to reflect this
change. We do so in this Final Rule.

Section-by-Section Discussion

    The following part of the preamble discusses comments to each of
the amended rule text sections.

Section 40.14 What collection information must employers provide to
collectors?

    The Department added a new Sec.  40.14 to put into one section the
information employers or their C/TPAs have been routinely providing
collectors or should have been providing collectors; information such
as, the reason for the test, whether the test is to be conducted under
direct observation, the MRO name and address, and employee information
(e.g., name and SSN or ID number), etc. All of this information would
need to be provided in Step 1 of the CCF. Since a new Step 1-D was
added to the CCF to specify which DOT Agency regulates the employee's
safety-sensitive function, we included this among the information the
employer or its C/TPA must provide to the collector.
    One commentor, a large laboratory with many collection sites,
concurred with the requirement for employers or C/TPAs to ensure the
collector has the necessary information to complete Step 1. The
commentor went on to say that it relied on the employer or C/TPA to
pre-mark the demographic information (e.g., test reason, testing
authority) in Step 1 since its collection sites don't keep employer-
specific CCFs at their sites and the employee may not know this
information. When the employer pre-marks this information, this helps
ensure the information is completed correctly. The Department agrees.
In the event Step 1 is not pre-marked, the employer would need to
ensure the information is provided to the collector.
    Two commentors, apparently from the same collection site, were
concerned that requiring the employer to provide the DOT Agency
information would be confusing for the employers and that not knowing
this information would delay the testing process. They stated ``* * *
there are many instances when the employer has no idea if their donor
is DOT or non-DOT'' and ``When inquiring of employers' DER to supply
this information the majority of the responses are 'I don't know!' The
Department also received several telephonic requests for clarification
since October 1 in which collectors questioned how they would know this
information if the employer didn't know it themselves.
    The Department believes the collector should never be put in a
situation to determine the DOT Agency that regulates an employee's
safety-sensitive functions. This is the employer's responsibility.
Furthermore, the Department was surprised to hear that any employer
currently regulated by DOT would not know which DOT Agency regulates
it. We can only surmise this is a rare occurrence and there is no
reason to believe it is a systemic problem. Perhaps it was because the
employer forgot the specific abbreviation of its respective regulator:
Federal Motor Carrier Safety Administration (FMCSA); Federal Aviation
Administration (FAA); Federal Railroad Administration (FRA); Federal
Transit Administration (FTA); Pipeline and Hazardous Materials Safety
Administration (PHMSA); and the United States Coast Guard (USCG).\1\
Nevertheless, not knowing this fundamental concept raised serious
concerns and compliance questions. For example: Is the employer subject
to the DOT's drug and alcohol testing regulations? If the employer is
covered by the DOT regulations, then other questions arise. Is the
employer testing its employees at the proper random testing rates? Is
the employer conducting post-accident tests when required? Is the
employer providing the correct educational material to its employees as
required by the DOT regulations? Is the employer appropriately filling-
out and submitting Management Information System (MIS) reports?
---------------------------------------------------------------------------

    \1\ For purposes of following the requirements of 49 CFR Part
40, ``DOT, The Department, DOT Agency'' is defined, at 40.3, to
include the United States Coast Guard.
---------------------------------------------------------------------------

    In response to the comment that employers do not know which DOT
Agency regulates them or their employees' safety-sensitive functions,
we encourage employers and their C/TPAs to review the guidance
documents available to them on our site http://www.dot.gov/odapc and
affirm their regulating DOT Agency. The Department is also providing
the following to assist employers and C/TPAs with understanding these
critical elements:

Federal Motor Carrier Safety Administration (FMCSA)

    Covered employee: A person who operates (i.e., drives) a Commercial
Motor Vehicle (CMV) with a gross vehicle weight rating (gvwr) of 26,001
or more pounds; or is designed to transport 16 or more occupants (to
include the driver); or is of any size and is used in the transport of
hazardous materials that require the vehicle to be placarded.

Federal Railroad Administration (FRA)

    Covered employee: A person who performs hours of service functions
at a rate sufficient to be placed into the railroad's random testing
program. Categories of personnel who normally perform these functions
are locomotive engineers, trainmen, conductors, switchmen, locomotive
hostlers/helpers, utility employees, signalmen, operators, and train
dispatchers.

Federal Aviation Administration (FAA)

    Covered employee: A person who performs flight crewmember duties,
flight attendant duties, flight instruction duties, aircraft dispatch
duties, aircraft maintenance or preventive maintenance duties; ground
security coordinator duties; aviation screening duties; and air traffic
control duties. Note: Anyone who performs the above duties directly or
by contract for a part 119 certificate holder authorized to operate
under parts 121 and/or 135,  air tour operators defined in 14 CFR part
91.147, and air traffic control facilities not operated by the
Government are considered covered employees.

Federal Transit Administration (FTA)

    Covered employee: A person who performs a  revenue vehicle
operation; revenue vehicle and equipment maintenance; revenue vehicle
control or dispatch (optional); Commercial Drivers License non-revenue
vehicle operation; or armed security duties.

Pipeline and Hazardous Materials Safety Administration (PHMSA)

    Covered employee: A person who performs on a pipeline or liquefied
natural gas (LNG) facility an operation, maintenance, or emergency-
response function.

United States Coast Guard (USCG)

    Covered employee: A person who is on board a vessel acting under
the authority of a license, certificate of registry, or merchant
mariner's document. Also, a person engaged or employed on board a U.S.
owned vessel and such vessel is required to engage, employ or be
operated by a person holding a license, certificate of registry, or
merchant mariner's document.
    Employers and their C/TPAs that may have DOT Agency-specific
questions can find the DOT Agency drug and alcohol program manager
contact

information at http://www.dot.gov/odapc/oamanagers.html.

Section 40.23 What actions do employers take after receiving verified
test results?

    In paragraph (f)(4) of this section, we added the DOT Agency to the
items an employer must instruct the collector to note on the CCF. There
were no comments to this section.

Section 40.45 What form is used to document a DOT urine collection?

    In paragraph (b) of this section, we changed the date after which
an expired CCF is not to be used and in paragraph (c)(3) of this
section, we permitted employers to preprint the box of the DOT Agency
under whose authority the test will occur. There were two comments to
this section. One commentor thanked the Department for authorizing the
use of the old CCF until September 30, 2011, stating the year-long
transition to the new CCF would provide employers and their service
agents ample time to deplete their stock of old CCFs. The other
commentor pointed out that the old CCF expires November 30, 2011, and
suggested that the inadvertent use of the old CCF be permitted until
this date. The Department agrees with the commentor about extending the
use of the old CCF until November 30, 2011 so that it coincides with
the form's actual expiration date. We have amended the rule text to
reflect this change, so that the use of an old CCF would be a flaw that
would require correction after November 30, 2011.

Section 40.63 What steps does the collector take in the collection
process before the employee provides a urine specimen?

    In paragraph (e) of this section we revised the rule text to
provide the collector with specific instructions on completing Step 2
of the CCF. One commentor concurred with this change. The same
commentor asked for clarification that a collector's failure to note
the DOT Agency in Step 1-D was not a flaw that would require the
collector to contact the DER to obtain the missing information. See our
response to Sec.  40.209.

Section 40.83 How do laboratories process incoming specimens?

    In paragraph (a) of this section we made a nomenclature change from
``laboratory copy'' to ``Copy 1''. One commentor agreed with this
change. The commentor wondered if DOT wanted laboratories to document
the DOT Agency information from the CCF into their systems. We neither
proposed that, nor will we require that.

Section 40.97 What do laboratories report and how do they report it?

    We revised paragraphs (a)(2)(i) and (ii), and (e)(1) of this
section to require the laboratory to include the numerical values for
the drug(s) or drug metabolite(s) in their report to the MRO. One
commentor agreed with this change. The commentor wondered if DOT wanted
laboratories to report the DOT Agency information from the CCF to the
MRO. We neither proposed that, nor will we require that.

Section 40.129 What are the MRO's functions in reviewing laboratory
confirmed non-negative drug test results?

    In paragraph (c) of this section we revised the rule text with
specific instructions to the MRO on completing Step 6 of Copy 2 of the
CCF. There were no comments to this section.

Section 40.163 How does the MRO report drug test results?

    In paragraph (c)(10) of this section we required the MRO to
indicate the DOT Agency on their written report to the employer if the
DOT Agency is noted on the CCF. There were two comments to this change.
One commentor asked for clarification on what action a MRO is to take
if the DOT Agency is not noted on the CCF. The other commentor
disagreed with the MRO including the DOT Agency on the result report to
the employer for the following reasons: (1) The absence of the DOT
Agency being marked on the CCF is not a flaw requiring corrective
action, (2) some service agents may view the absence of the DOT Agency
information as an item that requires corrective action by the
collector, (3) there is no current requirement for the service
provider's information system to capture this data element, (4) some
service agents may view this change as a requirement for the laboratory
to include the DOT Agency information on their electronic reports to
the MRO, and (5) the DOT Agency information would be on the employer's
copy of the CCF.
    Regarding the comment asking for clarification on what action a MRO
is to take if the DOT Agency is not noted on the CCF, the MRO is not to
delay the medical review process and report the verified result to the
employer. As we said in the IFR, ``* * *the laboratory and MRO should
note that the testing authority box was not checked and continue with
processing, testing, verifying, and reporting the specimen result, as
appropriate''. [75 FR 59106] Regarding the comment to not including the
DOT Agency on the result report to the employer, we agree that the
designation adds nothing to the employer's knowledge of the test
outcome. We have removed the requirement from the rule text.

Section 40.187 What does the MRO do with split specimen laboratory
results?

    In paragraph (f) of this section, we revised the rule text on how a
MRO is to document split specimen test results. There were no comments
to this section.

Section 40.191 What is a refusal to take a DOT drug test, and what are
the consequences?

    In paragraph (d)(2) of this section we revised the rule text on how
a MRO is to document a ``Refusal to Test''. There were no comments this
section.

Section 40.193 What happens when an employee does not provide a
sufficient amount of urine for a drug test?

    In paragraph (d)(2)(i) of this section we revised the rule text on
how a MRO is to complete Step 6 on Copy 2 of the CCF when recording a
``Refusal to Test''. There were no comments to this section.

Section 40.203 What problems cause a drug test to be cancelled unless
they are corrected?

    In paragraph (d)(2) of this section we made a nomenclature change
from ``laboratory copy'' to ``Copy 1''. In paragraph (d)(3) we revised
the time period during which the use of an expired form would not cause
the test to be canceled. One commentor did ``* * *not believe that use
of an expired CCF should result in a cancelled test--especially in a
post-accident testing situation.'' The commentor suggests, as they did
in an earlier comment, that use of the old CCF be permitted until its
expiration date of November 30, 2011 and that use after that date be
considered a ``correctable flaw''. See our response to Sec.  40.45.

Section 40.209 What procedural problems do not result in the
cancellation of a test and do not require corrective action?

    We revised paragraph (b)(1) of this section to say that omitting
the DOT Agency in Step 1-D of the CCF would be an administrative
mistake that would not result in the cancellation of a test and would
not require corrective action. One commentor, a large laboratory,
agreed that omitting the DOT Agency in Step 1-D of the CCF should be a
mistake that would not require corrective action. Another commentor, a
national

association, asked for clarification on what documentation a collector,
laboratory, MRO or other person administering the drug testing process
must maintain when the DOT Agency was not identified on the CCF.
    Another commentor, a large third party administrator, wanted to
bring a discrepancy to our attention. Specifically, the commentor
noticed a discrepancy between the title of this section in the IFR
``What procedural problems do not result in the cancellation of a test
and do not require corrective action?'' and the title of this section
in the 2001 final rule [66 FR 41954] ``What procedural problems do not
result in the cancellation of a test and do not require correction?''
    Regarding the comment asking for clarification on documenting the
omission of the DOT Agency in Step 1-D, we believe the plain language
of the rule text is self explanatory. Nevertheless, we will point out
that laboratories and MROs should document this omission as they have
been documenting similar omissions (the transposition of an employee's
social security number or employer ID number) in the past. As we stated
in the IFR, ``* * *the laboratory and MRO should note that the testing
authority box was not checked and continue with processing, testing,
verifying, and reporting the specimen result, as appropriate''.
Furthermore, there is no requirement for the collector to provide a
`memorandum for record' to anyone after the fact to indicate the DOT
Agency. The regulation requires the employer to provide this
information to the collector and the information is to be recorded on
the CCF. As a reminder to MROs and employers, it is important for you
to know the regulating DOT Agency since there may be DOT Agency
specific requirements you must fulfill (e.g., reporting medical
qualifications or non-negative results to a DOT Agency). Not complying
with a DOT Agency's regulatory requirement because the DOT Agency want
not indicated on the CCF does not mitigate your regulatory
responsibilities.
    The Department would also like to remind employers, C/TPAs and
collectors that although omitting the DOT Agency on the CCF would not
cancel the test or require corrective action, this type of error may
subject them to enforcement action under DOT Agency regulations or
action under the Public Interest Exclusion if it becomes a recurring
issue.
    Regarding the comment about the typographical discrepancy, the
commentor is correct. However, we will leave the title of this section
as printed in the IFR, because we believe it reads better and reflects
the intent expressed in the 2001 preamble. [66 FR 41948]

Section 40.355 What limitations apply to the activities of service
agents?

    In paragraph (l) of this section we made a nomenclature change from
``laboratory copy'' to ``Copy 1''. One commentor asked for guidance on
whether transmitting only Copy 1 to the laboratory is still applicable
since collectors are being instructed by the laboratory to fax the MRO
copy to a fax server at the lab.
    In this section, the Department only changed the nomenclature from
``laboratory copy'' to ``Copy 1''. The requirement for collectors to
send Copy 1 to the laboratory did not change.

Regulatory Analyses and Notices

    The statutory authority for this rule derives from the Omnibus
Transportation Employee Testing Act of 1991 (49 U.S.C. 102, 301, 322,
5331, 20140, 31306, and 54101 et seq.) and the Department of
Transportation Act (49 U.S.C. 322).
    This final rule is not significant for purposes of Executive Order
12866 or the DOT's regulatory policies and procedures. The rule
finalizes the authorization and procedures for using the new CCF for
DOT-required drug tests and makes a technical amendment to correct an
inadvertent oversight in a previous rulemaking. This rule does not
increase costs on regulated parties because it authorizes regulated
employers to continue using the old CCF for an additional fourteen
months, until November 30, 2011. After this date, the revised CCF must
be used. This allows employers to use their current supply of old CCFs
rather than discarding them. The rule does not impose new burdens on
any parties. While small entities are among those who may use the
revised CCF, the Department certifies, under the Regulatory Flexibility
Act, that this rule does not have a significant economic impact on a
substantial number of small entities.
    The Department finds good cause to make this rule final immediately
upon publication. The basis of this determination is that, under the
present interim final rule, drug tests recorded on the old version of
the CCF would have to be cancelled beginning October 1, 2011.
Laboratories and other program participants commented that because of
the large numbers of old forms still being used, this date would result
in large numbers of cancellations of otherwise valid tests. By making
this rule change effective before October 1, the Department will
prevent this unfortunate result and allow program participants to
further exhaust stocks of the old version of the form for another four
months. This will make program administration considerably smoother.

List of Subjects in 49 CFR Part 40

    Administrative practice and procedures, Alcohol abuse, Alcohol
testing, Drug abuse, Drug testing, Laboratories, Reporting and
recordkeeping requirements, Safety, Transportation.

    Issued September 22, 2011, at Washington DC.
Ray LaHood,
Secretary of Transportation.

    Accordingly, the Interim Final Rule amending 49 CFR part 40 which
was published at 75 CFR 59105 on September 27, 2010, is adopted as
final with the following changes:

PART 40--PROCEDURES FOR TRANSPORTATION WORKPLACE DRUG AND ALCOHOL
TESTING PROGRAMS

0
1. The authority citation for 49 CFR part 40 continues to read as
follows:

    Authority: 49 U.S.C. 102, 301, 322, 5331, 20140, 31306, and
54101 et seq.

0
2. In Sec.  40.3 revise the definition of ``Continuing education'' to
read as follows:

Sec.  40.3  What do the terms used in this part mean?

* * * * *
    Continuing education. Training for substance abuse professionals
(SAPs) who have completed qualification training and are performing SAP
functions, designed to keep SAPs current on changes and developments in
the DOT drug and alcohol testing program.
* * * * *

0
3. In Sec.  40.45, revise paragraph (b) to read as follows:

Sec.  40.45  What form is used to document a DOT urine collection?

* * * * *
    (b) You must not use a non-Federal form or an expired CCF to
conduct a DOT urine collection. As a laboratory, C/TPA or other party
that provides CCFs to employers, collection sites, or other customers,
you must not provide copies of an expired CCF to these participants.
You must also affirmatively notify these participants that they must
not use an expired CCF (e.g., that after November 30, 2011, they must
not use an expired CCF for DOT urine collections).
* * * * *

0
4. In Sec.  40.163:
0
a. Paragraph (c)(8) is amended by removing the semi-colon at the end
and adding ``; and'' in its place.
0
b. Paragraph (c)(9) is amended by removing ``; and'' and adding a
period in its place.
0
c. Remove paragraph (c)(10).

0
5. In Sec.  40.203, paragraph (d)(3) is revised, to read as follows:

Sec.  40.203  What problems cause a drug test to be cancelled unless
they are corrected?

* * * * *
    (d) * * *
    (3) The collector uses a non-Federal form or an expired CCF for the
test. This flaw may be corrected through the procedure set forth in
Sec.  40.205(b)(2), provided that the collection testing process has
been conducted in accordance with the procedures of this part in an
HHS-certified laboratory. During the period of October 1, 2010-November
30, 2011, you are not required to cancel a test because of the use of
an old CCF. Beginning December 1, 2011, if the problem is not
corrected, you must cancel the test.
* * * * *
[FR Doc. 2011-24818 Filed 9-26-11; 8:45 am]
BILLING CODE 4910-9X-P


[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Notices]
[Pages 22498-22502]
[FR Doc No: 2020-08490]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88669; File No. SR-MRX-2020-10]

Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Adopt a New Rule
Titled Transfer of Positions Within Options 6, Section 5

April 16, 2020.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 7, 2020, Nasdaq MRX, LLC (``MRX'' or ``Exchange'') filed with
the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I and II, below, which Items have
been prepared by the Exchange. The Commission is publishing this notice
to solicit comments on the proposed rule change from interested
persons.
---------------------------------------------------------------------------

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

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

    The Exchange proposes to adopt a new rule titled ``Transfer of
Positions'' within Options 6, Section 5.
    The text of the proposed rule change is available on the Exchange's
website at http://nasdaqmrx.cchwallstreet.com/, at the principal office
of the Exchange, and at the Commission's Public Reference Room.

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

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The 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 adopt a new rule titled, ``Transfer of
Positions'' within Options 6, Section 5, which is currently reserved.
Today, MRX does not permit transfers. This proposed rule specifies the
specific limited circumstances under which a Member may effect
transfers of positions. This rule would permit market participants to
move positions from one account to another without first exposure of
the transaction on the MRX. This rule would permit transfers upon the
occurrence of significant, non-recurring events. The proposed rule
change is similar to Cboe Rule 6.7.\3\
---------------------------------------------------------------------------

    \3\ See Securities and Exchange Act Release No. 88424 (March 19,
2020), 85 FR 16981 (March 25, 2020) (SR-Cboe-2019-035) (Notice of
Filing of Amendment Nos. 1 and 2 and Order Granting Accelerated
Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1
and 2, Regarding Off-Floor Position Transfers).
---------------------------------------------------------------------------

Permissible Transfers
    The Exchange proposes to adopt new Options 6, Section 5 titled
``Transfer of Positions'' to provide for the circumstances pursuant to
which Members may transfer their options positions without first
exposing the order. This rule states that a Member must be on at least
one side of the transfer. This rule is similar to CBOE Rule 6.7.
Currently, MRX has no rule that specifically addresses transfers.
    The Exchange proposes to provide at proposed Options 6, Section
5(a), ``Permissible Transfers. Existing positions in options listed on
the Exchange of a Member or non-Member that are to be transferred on,
from, or to the books of a Clearing Member may be transferred off the
Exchange if the transfer involves one or more of the following events:
    (1) Pursuant to Options 9, Section 5, an adjustment or transfer in
connection with the correction of a bona fide error in the recording of
a transaction or the transferring of a position to another account,
provided that the original trade documentation confirms the error;
    (2) the transfer of positions from one account to another account
where no change in ownership is involved (i.e., accounts of the same
Person, provided the accounts are not in separate aggregation units or
otherwise subject to information barrier or account segregation
requirements;
    (3) the consolidation of accounts where no change in ownership is
involved;
    (4) a merger, acquisition, consolidation, or similar non-recurring
transaction for a Person;
    (5) the dissolution of a joint account in which the remaining
Member assumes the positions of the joint account;
    (6) the dissolution of a corporation or partnership in which a
former nominee of the corporation or partnership assumes the positions;
    (7) positions transferred as part of a Member's capital
contribution to a new joint account, partnership, or corporation;
    (8) the donation of positions to a not-for-profit corporation;
    (9) the transfer of positions to a minor under the Uniform Gifts to
Minors Act; or
    (10) the transfer of positions through operation of law from death,
bankruptcy, or otherwise.\4\
---------------------------------------------------------------------------

    \4\ See Cboe Rule 6.7(a).
---------------------------------------------------------------------------

    The Exchange proposes to define ``Person'' as ``an individual,
partnership (general or limited), joint stock company, corporation,
limited liability company, trust or unincorporated organization, or any
governmental entity or agency or political subdivision thereof.'' \5\
The proposed rule change makes clear that the transferred positions
must be on, from, or to the books of a Clearing Member. The proposed
rule change states that existing positions of a Member or a non-Member
may be subject to an transfer, except under specified circumstances in
which a transfer may only be effected for positions of a Member.\6\ The
Exchange notes transfers of positions in Exchange-listed options may
also be subject to applicable laws, rules, and regulations, including
rules of other self-regulatory organizations.\7\ Except as explicitly
provided in the proposed rule text, the proposed rule change is not
intended to exempt position transfers from any other applicable rules
or regulations, and proposed paragraph (h) makes this clear in the
rule.
---------------------------------------------------------------------------

    \5\ See Cboe Rule 1.1.
    \6\ See proposed Options 6, Section 5(a)(5) and (7).
    \7\ See proposed Options 6, Section 5(h).
---------------------------------------------------------------------------

    Proposed Options 6, Section (b) codifies Exchange guidance
regarding certain restrictions on permissible transfers related to
netting of open positions and to margin and haircut treatment, unless
otherwise permitted by proposed paragraph (f). No position may net
against another position

(``netting''), and no position transfer may result in preferential
margin or haircut treatment.\8\ Netting occurs when long positions and
short positions in the same series ``offset'' against each other,
leaving no or a reduced position. For example, if a Member wanted to
transfer 100 long calls to another account that contained short calls
of the same options series as well as other positions, even if the
transfer is permitted pursuant to one of the 10 permissible events
listed in the proposed Rule, the Member could not transfer the
offsetting series, as they would net against each other and close the
positions.\9\
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    \8\ For example, positions may not transfer from a customer,
joint back office, or firm account to a Market Maker account.
However, positions may transfer from a Market Maker account to a
customer, joint back office, or firm account (assuming no netting of
positions occurs).
    \9\ See Cboe Rule 6.7(b).
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    However, netting is permitted for transfers on behalf of a Market
Maker account for transactions in multiply listed options series on
different options exchanges, but only if the Market Maker nominees are
trading for the same Member, and the options transactions on the
different options exchanges clear into separate exchange-specific
accounts because they cannot easily clear into the same Market Maker
account at the Clearing Corporation. In such instances, all Market
Maker positions in the exchange-specific accounts for the multiply
listed class would be automatically transferred on their trade date
into one central Market Maker account (commonly referred to as a
``universal account'') at the Clearing Corporation. Positions cleared
into a universal account would automatically net against each other.
Options exchanges permit different naming conventions with respect to
Market Maker account acronyms (for example, lettering versus numbering
and number of characters), which are used for accounts at the Clearing
Corporation. A Market Maker may have a nominee with an appointment in
class XYZ on Phlx, and have another nominee with an appointment in
class XYZ on MRX, but due to account acronym naming conventions, those
nominees may need to clear their transactions into separate accounts
(one for Phlx Options transactions and another for MRX transactions) at
the Clearing Corporation rather into a universal account (in which
account the positions may net). The proposed rule change permits
transfers from these separate exchange-specific accounts into the
Market Maker's universal account in this circumstance to achieve this
purpose.
Transfer Price
    Proposed Options 6, Section 5(c) states the transfer price, to the
extent it is consistent with applicable laws, rules, and regulations,
including rules of other self-regulatory organizations, and tax and
accounting rules and regulations, at which an transfer is effected may
be: (1) The original trade prices of the positions that appear on the
books of the trading Clearing Member, in which case the records of the
transfer must indicate the original trade dates for the positions;
provided, transfers to correct bona fide errors pursuant to proposed
subparagraph (a)(1) must be transferred at the correct original trade
prices; (2) mark-to-market prices of the positions at the close of
trading on the transfer date; (3) mark-to-market prices of the
positions at the close of trading on the trade date prior to the
transfer date; \10\ or (4) the then-current market price of the
positions at the time the transfer is effected.\11\
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    \10\ For example, for a transfer that occurs on a Tuesday, the
transfer price may be based on the closing market price on Monday.
    \11\ See Cboe Rule 6.7(c).
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    This proposed rule change provides market participants that effect
transactions with flexibility to select a transfer price based on
circumstances of the transfer and their business. However, for
corrections of bona fide errors, because those transfers are necessary
to correct processing errors that occurred at the time of transaction,
those transfers would occur at the original transaction price, as the
purpose of the transfer is to create the originally intended result of
the transaction.
Prior Written Notice
    Proposed Options 6, Section 5(d) requires a Member and its Clearing
Member (to the extent that the Member is not self-clearing) to submit
to the Exchange, in a manner determined by the Exchange, written notice
prior to effecting an transfer from or to the account of a
Member(s).\12\ The notice must indicate: The Exchange-listed options
positions to be transferred; the nature of the transaction; the
enumerated provision(s) under proposed paragraph (a) pursuant to which
the positions are being transferred; the name of the counterparty(ies);
the anticipated transfer date; the method for determining the transfer
price; and any other information requested by the Exchange.\13\ The
proposed notice will ensure the Exchange is aware of all transfers so
that it can monitor and review them (including the records that must be
retained pursuant to proposed paragraph (e)) to determine whether they
are effected in accordance with the Rules.
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    \12\ This notice provision applies only to transfers involving a
Member's positions and not to positions of non-Member parties, as
they are not subject to the Rules. In addition, no notice would be
required to effect transfers to correct bona fide errors pursuant to
proposed subparagraph (a)(1).
    \13\ See Cboe Rule 6.7(d).
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    Additionally, requiring notice from the Member(s) and its Clearing
Member(s) will ensure both parties are in agreement with respect to the
terms of the transfer. As noted in proposed subparagraph (d)(2),
receipt of notice of an transfer does not constitute a determination by
the Exchange that the transfer was effected or reported in conformity
with the requirements of proposed Section 10(b). Notwithstanding
submission of written notice to the Exchange, Members and Clearing
Members that effect transfers that do not conform to the requirements
of proposed Section 10(b) will be subject to appropriate disciplinary
action in accordance with the Rules.
Records
    Similarly, proposed Options 6, Section 5(e) requires each Member
and each Clearing Member that is a party to a transfer must make and
retain records of the information provided in the written notice to the
Exchange pursuant to proposed subparagraph (e)(1), as well as
information on the actual Exchange-listed options that are ultimately
transferred, the actual transfer date, and the actual transfer price
(and the original trade dates, if applicable), and any other
information the Exchange may request the Member or Clearing Member
provide.\14\
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    \14\ See Cboe Rule 6.7(e).
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Presidential Exemption
    Proposed paragraph (f) provides exemptions approved by the
Exchange's Chief Executive Officer or President (or senior-level
designee). Specifically, this provision is in addition to the
exemptions set forth in proposed paragraph (a). The Exchange proposes
that the Exchange Chief Executive Officer or President (or senior-level
designee) may grant an exemption from the requirement of this proposed
Rule, on his or her own motion or upon application of the Member (with
respect to the Member's positions) or a Clearing Member (with respect
to positions carried and cleared by the Clearing Members). The Chief
Executive Officer, the President or his or her designee, may permit a
transfer if necessary or appropriate for the maintenance of a fair

and orderly market and the protection of investors and is in the public
interest, including due to unusual or extraordinary circumstances. For
example, an exemption may be granted if the market value of the
Person's positions would be compromised by having to comply with the
requirement to trade on the Exchange pursuant to the normal auction
process or when, in the judgment of the Chief Executive Officer,
President or his or her designee, market conditions make trading on the
Exchange impractical.\15\
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    \15\ See Cboe Rule 6.7(f).
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Routine, Recurring Transfers
    The Exchange proposes within Options 6, Section 5(g) that the
transfer procedure set forth in Options 6, Section 5 is intended to
facilitate non-routine, nonrecurring movements of positions.\16\ The
transfer procedure is not to be used repeatedly or routinely in
circumvention of the normal auction market process.
---------------------------------------------------------------------------

    \16\ See Cboe Rule 6.7(g).
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Exchange-Listed Options
    The Exchange proposes within Options 6, Section 5(h) notes that the
transfer procedure set forth in Options 6, Section 5 is only applicable
to positions in options listed on the Exchange. Transfers of positions
in Exchange-listed options may also be subject to applicable laws,
rules, and regulations, including rules of other self-regulatory
organizations. Transfers of non-Exchange listed options and other
financial instruments are not governed by this Rule.\17\
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    \17\ See Cboe Rule 6.7(h).
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\18\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\19\ in particular, in that it is designed to
promote just and equitable principles of trade, to remove impediments
to and perfect the mechanism of a free and open market and a national
market system, and, in general to protect investors and the public
interest.
---------------------------------------------------------------------------

    \18\ 15 U.S.C. 78f(b).
    \19\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Specifically, the Exchange believes the proposed transfer rule is
consistent with the Section 6(b)(5) \20\ requirements that the rules of
an exchange be designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
Additionally, the Exchange believes the proposed rule change is
consistent with the Section 6(b)(5) \21\ requirement that the rules of
an exchange not be designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \20\ 15 U.S.C. 78f(b)(5).
    \21\ Id.
---------------------------------------------------------------------------

    The Exchange believes that permitting transfers under new Options
6, Section 5 in very limited circumstances is reasonable to allow a
Member to accomplish certain goals efficiently. The proposed rule
permits transfers in situations involving dissolutions of entities or
accounts, for purposes of donations, mergers or by operation of law.
For example, a Member that is undergoing a structural change and a one-
time movement of positions may require a transfer of positions or a
Member that is leaving a firm that will no longer be in business may
require a transfer of positions to another firm. Also, a Member may
require a transfer of positions to make a capital contribution. The
above-referenced circumstances are non-recurring situations where the
transferor continues to maintain some ownership interest or manage the
positions transferred. By contrast, repeated or routine transfers
between entities or accounts--even if there is no change in beneficial
ownership as a result of the transfer--is inconsistent with the
purposes for which the proposed rule was adopted. Accordingly, the
Exchange believes that such activity should not be permitted under the
rules and thus, seeks to adopt language in proposed paragraph (f) to
proposed Options 6, Section 5 that the transfer of positions procedures
set forth the proposed rule are intended to facilitate non-recurring
movements of positions.
    The proposed rule change will provide market participants that
experience these limited, non-recurring events with an efficient and
effective means to transfer positions in these situations. The Exchange
believes the proposed rule change regarding permissible transfer prices
provides market participants with flexibility to determine the price
appropriate for their business, which maintain cost bases in accordance
with normal accounting practices and removes impediments to a free and
open market.
    The proposed rule change which requires notice and maintenance of
records will ensure the Exchange is able to review transfers for
compliance with the Rules, which prevents fraudulent and manipulative
acts and practices. The requirement to retain records is consistent
with the requirements of Rule 17a-3 and 17a-4 under the Act.
    Similar to Cboe Rule 6.7, the Exchange would permit a presidential
exemption. The Exchange believes that this exemption is consistent with
the Act because the Exchange's Chief Executive Officer or President (or
senior-level designee) would consider an exemption in very limited
circumstances. The transfer process is intended to facilitate non-
routine, nonrecurring movements of positions and, therefore, is not to
be used repeatedly or routinely in circumvention of the normal auction
market process. Proposed Options 6, Section 5(f) specifically provides
within the rule text that the Exchange's Chief Executive Officer or
President (or senior-level designee) may in his or her judgment allow a
transfer if it is necessary or appropriate for the maintenance of a
fair and orderly market and the protection of investors and is in the
public interest, including due to unusual or extraordinary
circumstances such as the market value of the Person's positions will
be comprised by having to comply with the requirement to trade on the
Exchange pursuant to the normal auction process or, when in the
judgment of President or his or her designee, market conditions make
trading on the Exchange impractical. These standards within proposed
Options 6, Section 5(f) are intended to provide guidance concerning the
use of this exemption which is intended to provide the Exchange with
the ability to utilize the exemption for the maintenance of a fair and
orderly market and the protection of investors and is in the public
interest. The Exchange believes that the exemption is consistent with
the Act because it would allow the Exchange's Chief Executive Officer
or President (or senior-level designee) to act in certain situations
which comply with the guidance within Options 6, Section 5(f) which are
intended to protect investors and the general public. While Cboe grants
an exemption to the President (or senior-level designee),\22\ the
Exchange has elected to grant an exemption to Exchange's Chief
Executive Officer or President (or senior-level designee), who are
similarly situated with the organization as senior-level individuals.
---------------------------------------------------------------------------

    \22\ See Cboe Rule 6.7(f).

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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 that is not necessary or appropriate
in furtherance of the purposes of the Act.
    The Exchange does not believe the proposed rule change will impose
an undue burden on intra-market competition as the transfer procedure
may be utilized by any Member and the rule will apply uniformly to all
Members. Use of the transfer procedure is voluntary, and all Members
may use the procedure to transfer positions as long as the criteria in
the proposed rule are satisfied. With this change, a Member that
experiences limited permissible, non-recurring events would have an
efficient and effective means to transfer positions in these
situations. The Exchange believes the proposed rule change regarding
permissible transfer prices provides market participants with
flexibility to determine the price appropriate for their business,
which determine prices in accordance with normal accounting practices
and removes impediments to a free and open market. The Exchange does
not believe the proposed notice and record requirements are unduly
burdensome to market participants. The Exchange believes the proposed
requirements are reasonable and will ensure the Exchange is aware of
transfers and would be able to monitor and review the transfers to
ensure the transfer falls within the proposed rule.
    Adopting an exemption, similar to Cboe Rule 6.7, to permit the
Exchange's Chief Executive Officer or President (or senior-level
designee) to grant an exemption to Options 6, Section 5(a) prohibition
if, in his or her judgment, does not impose an undue burden on
competition. Circumstances where, due to unusual or extraordinary
circumstances such as the market value of the Person's positions would
be comprised by having to comply with the requirement to trade on the
Exchange pursuant to the normal auction process or, would be taken into
consideration in each case where, in the judgment of the Exchange's
Chief Executive Officer or President (or senior-level designee), market
conditions make trading on the Exchange impractical.
    The Exchange does not believe the proposed rule change will impose
an undue burden on inter-market competition. The proposed position
transfer procedure is not intended to be a competitive trading tool.
The proposed rule change permits, in limited circumstances, a transfer
to facilitate non-routine, nonrecurring movements of positions. As
provided for in proposed Options 6, Section 5(g), it would not be used
repeatedly or routinely in circumvention of the normal auction market
process. Proposed Options 6, Section 5(a) specifically provides within
the rule text that the Exchange's Chief Executive Officer or President
(or senior-level designee) may in his or her judgment allow a transfer
for the maintenance of a fair and orderly market and the protection of
investors and is in the public interest. The Exchange believes that the
exemption does not impose an undue burden on competition as the
Exchange's Chief Executive Officer or President (or senior-level
designee) would apply the exemption consistent with the guidance within
Options 6, Section 5(f). Additionally, as discussed above, the proposed
rule change is similar to Cboe Rule 6.7. The Exchange believes having
similar rules related to transfer positions to those of other options
exchanges will reduce the administrative burden on market participants
of determining whether their transfers comply with multiple sets of
rules.

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

    No written comments were either solicited or received.

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

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A)(iii) of the Act \23\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\24\
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    \23\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \24\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) normally does
not become operative for 30 days from the date of filing. However, Rule
19b-4(f)(6)(iii) \25\ permits the Commission to designate a shorter
time if such action is consistent with the protection of investors and
the public interest. The Exchange has asked the Commission to waive the
30-day operative delay. The Commission notes that waiver of the
operative delay would provide Members with the ability to request a
transfer, for limited, non-recurring types of transfers, without the
need for exposing those orders on the Exchange, similar to Cboe.\26\
The Commission believes that waiver of the 30-day operative delay is
consistent with the protection of investors and the public interest.
Accordingly, the Commission waives the 30-day operative delay and
designates the proposed rule change operative upon filing.\27\
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    \25\ 17 CFR 240.19b-4(f)(6)(iii).
    \26\ See CBOE Rule 6.7.
    \27\ For purposes only of waiving the 30-day operative delay,
the Commission has also considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    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.

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-MRX-2020-10 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-MRX-2020-10. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/

rules/sro.shtml). Copies of the submission, all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for website
viewing and printing in the Commission's Public Reference Room, 100 F
Street NE, Washington, DC 20549, on official business days between the
hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be
available for inspection and copying at the principal office of the
Exchange. All comments received will be posted without change. Persons
submitting comments are cautioned that we do not redact or edit
personal identifying information from comment submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-MRX-2020-10 and should be
submitted on or before May 13, 2020.
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    \28\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\28\
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-08490 Filed 4-21-20; 8:45 am]
 BILLING CODE 8011-01-P