[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Rules and Regulations]
[Pages 26881-26883]
[FR Doc No: 2010-11187]

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Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
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Federal Register / Vol. 75, No. 92 / Thursday, May 13, 2010 / Rules
and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0476; Directorate Identifier 2010-NM-036-AD;
Amendment 39-16298; AD 2010-10-19]
RIN 2120-AA64

Airworthiness Directives; Airbus Model A340-200 and A340-300
Series Airplanes

AGENCY: Federal Aviation Administration (FAA), Department of
Transportation (DOT).

ACTION: Final rule; request for comments.

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SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above that supersedes an existing AD. This AD results
from mandatory continuing airworthiness information (MCAI) originated
by an aviation authority of another country to identify and correct an
unsafe condition on an aviation product. The MCAI describes the unsafe
condition as:
* * * * *
    Engineering analysis using the new calculated loads has shown
that the structural integrity of the forward engine mount cannot be
guaranteed after either thrust link has accumulated 15500 Flight
Cycles (FC).
* * * * *
    A loss of structural integrity of the forward engine mounts could
lead to the loss of the load path for the forward engine mount and
damage to other engine mount structures, which could result in failure
of the forward engine mount, possible separation of the engine from the
airplane, damage to the wing, or loss of control of the airplane. This
AD requires actions that are intended to address the unsafe condition
described in the MCAI.

DATES: This AD becomes effective May 28, 2010.
    On January 29, 2010 (75 FR 2057, January 14, 2010), the Director of
the Federal Register approved the incorporation by reference of a
certain publication listed in this AD.
    We must receive comments on this AD by June 28, 2010.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office
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 street address for
the Docket Operations office (telephone<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.

FOR FURTHER INFORMATION CONTACT: Vladimir Ulyanov, International
Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue,
SW., Renton, Washington 98057-3356; telephone<PHONE_NUMBER>; fax (425)
227-1149.

SUPPLEMENTARY INFORMATION:

Discussion

    On December 30, 2009, we issued AD 2010-02-03, Amendment 39-16174
(75 FR 2057, January 14, 2010). That AD required actions intended to
address an unsafe condition on the products listed above.
    Since we issued AD 2010-02-03, Airbus requested that we clarify the
compliance time for airplanes with thrust links for which the part
history is partial or unknown as specified in paragraph (g)(1)(ii) of
the original AD. Airbus notes that Airbus Mandatory Service Bulletin
A340-71-4006, Revision 01, dated May 14, 2009, calculates the limits
using flight cycles. We have revised paragraph (g)(1)(ii) of this AD to
refer to a compliance time specified in flight cycles accordingly.

FAA's Determination and Requirements of This AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are issuing this AD because we
evaluated all pertinent information and determined the unsafe condition
exists and is likely to exist or develop on other products of the same
type design.
    There are no products of this type currently registered in the
United States. However, this rule is necessary to ensure that the
described unsafe condition is addressed if any of these products are
placed on the U.S. Register in the future.

Differences Between the AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have required different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a NOTE within the AD.

FAA's Determination of the Effective Date

    Since there are currently no domestic operators of this product,
notice and opportunity for public comment before issuing this AD are
unnecessary.

Comments Invited

    This AD is a final rule that involves requirements affecting flight
safety, and

we did not precede it by notice and opportunity for public comment. We
invite you to send any written relevant data, views, or arguments about
this AD. Send your comments to an address listed under the ADDRESSES
section. Include ``Docket No. FAA-2010-0476; Directorate Identifier
2010-NM-036-AD'' at the beginning of your comments. We specifically
invite comments on the overall regulatory, economic, environmental, and
energy aspects of this AD. We will consider all comments received by
the closing date and may amend this AD because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this AD.

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

    We determined that this AD will not have federalism implications
under Executive Order 13132. This AD will not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
    For the reasons discussed above, I certify this AD:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the 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.
    We prepared a regulatory evaluation of the estimated costs to
comply with this AD and placed it 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 removing Amendment 39-16174 (75 FR
2057, January 14, 2010) and adding the following new AD:

2010-10-19 Airbus: Amendment 39-16298. Docket No. FAA-2010-0476,
Directorate Identifier 2010-NM-036-AD.

Effective Date

    (a) This airworthiness directive (AD) becomes effective May 28,
2010.

Affected ADs

    (b) This AD supersedes AD 2010-02-03, Amendment 39-16174.

Applicability

    (c) This AD applies to Airbus Model A340-211, -212, -213, -311,
-312, and -313 airplanes, all manufacturer serial numbers;
certificated in any category.

Subject

    (d) Air Transport Association (ATA) of America Code 71:
Powerplant.

Reason

    (e) The mandatory continued airworthiness information (MCAI)
states:

    ``A recent review of the A340-200/300 fleet has shown that the
current utilization rate of the aeroplanes is different from the
assumptions used at the time of A340 initial certification. New
calculations have been performed taking into account an updated
mission profile to determine the impact to the loads on the forward
engine mount.
    Engineering analysis using the new calculated loads has shown
that the structural integrity of the forward engine mount cannot be
guaranteed after either thrust link has accumulated 15500 Flight
Cycles (FC).
    Consequently, this AD introduces a Limit Of Validity (LOV) of 15
500 FC for CFM 56-5C forward engine mount thrust links Part Number
(P/N) 340-7005-3 and P/N 340-7005-4.
    In addition, this AD requires establishing the deadline for
replacement of forward engine mount thrust link assemblies, to trace
the life of these assemblies and to replace them no later than the
calculated deadline.''

    A loss of structural integrity of the forward engine mounts
could lead to the loss of the load path for the forward engine mount
and damage to other engine mount structures, which could result in
failure of the forward engine mount, possible separation of the
engine from the airplane, damage to the wing, or loss of control of
the airplane.

Compliance

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

Actions

    (g) Do the following actions.
    (1) At the applicable time specified in paragraph (g)(1)(i) or
(g)(1)(ii) of this AD: Calculate the flight cycles, as applicable,
and replace all CFM 56-5C forward engine mount thrust links P/N 340-
7005-3 or P/N 340-7005-4, in accordance with the Accomplishment
Instructions of Airbus Mandatory Service Bulletin A340-71-4006,
Revision 01, dated May 14, 2009.

    Note 1: P/N 340-7005-3 and P/N 340-7005-4 are the part numbers
for only the link. P/N 340-7005-503 and P/N 340-7005-504 are the
part numbers for the assembly (comprising the bearing and the link).

    (i) For airplanes with thrust links for which the history of the
part is available: Replace in accordance with Airbus Mandatory
Service Bulletin A340-71-4006, Revision 01, dated May 14, 2009,
prior to the accumulation of 15,500 total flight cycles on the part,
or within 90 days from the effective date of the AD, whichever
occurs later.
    (ii) For airplanes with thrust links for which the part history
is partial or unknown: Within 30 days after the effective date of
this AD, calculate the limit for replacement in accordance with the
calculation method provided in Airbus Mandatory Service Bulletin
A340-71-4006, Revision 01, dated May 14, 2009, and replace the part
no later than the calculated limit for replacement.
    (2) Repeat the replacement required by paragraph (g)(1) of this
AD at intervals not to exceed 15,500 flight cycles on the part in
accordance with the Accomplishment Instructions of Airbus Mandatory
Service Bulletin A340-71-4006, Revision 01, dated May 14, 2009.

FAA AD Differences

    Note 2:  This AD differs from the MCAI and/or service
information as follows: No differences.

Other FAA AD Provisions

    (h) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. Send information to Attn:
Vladimir Ulyanov,

International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425) 227-1138; fax<PHONE_NUMBER>. Before using any approved AMOC
on any airplane to which the AMOC applies, notify your principal
maintenance inspector (PMI) or principal avionics inspector (PAI),
as appropriate, or lacking a principal inspector, your local Flight
Standards District Office. The AMOC approval letter must
specifically reference this AD.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to ensure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.), the Office of Management and Budget (OMB) has
approved the information collection requirements and has assigned
OMB Control Number 2120-0056.

Related Information

    (i) Refer to Mandatory Continuing Airworthiness Information
(MCAI) European Aviation Safety Agency (EASA) Airworthiness
Directive 2009-0115, dated May 29, 2009; and Airbus Mandatory
Service Bulletin A340-71-4006, Revision 01, dated May 14, 2009; for
related information.

Material Incorporated by Reference

    (j) You must use Airbus Mandatory Service Bulletin A340-71-4006,
Revision 01, dated May 14, 2009, to do the actions required by this
AD, unless the AD specifies otherwise.
    (1) The Director of the Federal Register previously approved the
incorporation by reference of Airbus Mandatory Service Bulletin
A340-71-4006, Revision 01, dated May 14, 2009, on January 29, 2010
(75 FR 2057, January 14, 2010).
    (2) For service information identified in this AD, contact
Airbus SAS--Airworthiness Office--EAL, 1 Rond Point Maurice
Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96;
fax +33 5 61 93 45 80; e-mail<EMAIL_ADDRESS>
Internet http://www.airbus.com.
    (3) You may review copies of the service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington. For information on the availability of this material at
the FAA, call<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Issued in Renton, Washington, on May 3, 2010.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-11187 Filed 5-12-10; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Notices]
[Page 88059]
[FR Doc No: 2023-27980]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 12790-015]

Andrew Peklo III; Notice of Availability of Environmental
Assessment

    In accordance with the National Environmental Policy Act of 1969
and the Federal Energy Regulatory Commission's (Commission or FERC)
regulations, 18 CFR part 380, Commission staff reviewed Andrew Peklo
III's (licensee) application for an amendment of the project license
for the Pomperaug Hydroelectric Project No. 12790 and have prepared an
Environmental Assessment (EA) for the proposed amendment. The licensee
proposes to install two 45 kilowatt (kW) turbines (for a total
generating capacity of 90 kW) instead of the single 76 kW turbine
authorized in the project license. The Pomperaug Project is
unconstructed and would consist of a powerhouse located adjacent to the
existing Pomperaug Dam on the Pomperaug River in the town of Woodbury,
Litchfield County, Connecticut, and is not located on Federal lands.
    The final EA contains Commission staff's analysis of the potential
environmental effects of the proposed two-turbine installation and
supporting activities, alternatives to the proposed action, and
concludes that the proposed installation, with appropriate
environmental protective measures, would not constitute a major Federal
action that would significantly affect the quality of the human
environment.
    The final EA may be viewed on the Commission's website at http://www.ferc.gov using the ``elibrary'' link. Enter the docket number (P-
12790-015) in the docket number field to access the document. For
assistance, contact FERC Online Support at [email protected]
or toll-free at 1-866-208-3676, or for TTY,<PHONE_NUMBER>.
    You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances
related to this or other pending projects. For assistance, contact FERC
Online Support.
    The Commission's Office of Public Participation (OPP) supports
meaningful public engagement and participation in Commission
proceedings. OPP can help members of the public, including landowners,
environmental justice communities, Tribal members and others, access
publicly available information and navigate Commission processes. For
public inquiries and assistance with making filings such as
interventions, comments, or requests for rehearing, the public is
encouraged to contact OPP at<PHONE_NUMBER> or [email protected].
    For further information, contact Zeena Aljibury at<PHONE_NUMBER> or
[email protected].

    Dated: December 14, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2023-27980 Filed 12-19-23; 8:45 am]
BILLING CODE 6717-01-P


Bryan Manning								8/29/2007

U.S. EPA Office of Transportation and Air

Quality Assessment and Standards Division

2000 Traverwood Drive

Ann Arbor, MI 48105

Bryan,

Attached please find an executive summary of Coordinating Research
Council work dated 2003, relating to the efforts to find an unleaded
alternative aviation fuel to replace the current leaded aviation
gasoline (100LL).  Also attached is a presentation given to CRC in 2006
covering recent testing results.  The CRC members have agreed to release
this information, at your request, for inclusion in the public record.

Please note that the Coordinating Research Council (CRC) is a non-profit
organization that directs, through committee action, engineering and
environmental studies on the interaction between equipment and petroleum
products.  The CRC is not involved in any way in regulation, which
remains a governmental responsibility;  nor is CRC involved in the
development of hardware or petroleum products, which remains the
responsibility of private industry.  The entire mission statement of CRC
can be found on their website   HYPERLINK "http://www.crcao.org"
www.crcao.org , by selecting the link “about CRC”.

The CRC Aviation Gasolines Committee continues to direct research in the
area of unleaded aviation gasolines and has made significant progress
since the attached write-ups were completed.  In particular, the
detonation testing of 47 unleaded fuel blends in a full-scale engine
from the second level of matrix fuels has been completed.  Detonation
performance differences from recent full-scale engine tests between
leaded and unleaded fuels of equivalent octane have also been
documented.  Furthermore, plans are being pursued to direct research
regarding engine modifications to reduce engine octane requirement.

Sincerely,

Dave Atwood

Vice Chairman, Aviation Gasolines Committee

(609) 485-4986

<EMAIL_ADDRESS>


Shipments such as plastic bottles or drums that are in direct contact
with a hazardous material will not be opened pursuant to this
authority.
    Proposed Sec.  109.3(b)(4)(iii) stated that an agent may remove the
package and related packages in a shipment or a freight container from
transportation in commerce when the agent has an objectively reasonable
and articulable belief that the package may pose an imminent hazard,
provided the agent records this belief in writing as soon as
practicable. The substance of this provision is now located in its
separate section at Sec.  109.7, Removal from transportation. This
section implements 49 U.S.C. 5121(c)(1)(C) by permitting a DOT agent to
remove from transportation in commerce a package (including a freight
container) or related packages when the agent has an objectively
reasonable and articulable belief that the package may pose an imminent
hazard. PHMSA intends to employ this remedy when necessary to suspend
or restrict the transportation of a shipment that is deemed unsafe.
Should this condition exist, the agent must document for his or her
supervising official the basis for removing the package from
transportation as soon as practicable, including the findings that the
shipment contained a hazardous material and the identified imminent
hazard. The documentation requirement safeguards the inspection and
enforcement process by requiring DOT to specifically describe the
hazard present and substantiate the need to remove the shipment from
the stream of commerce. The documentation will chronicle the activities
and events culminating in removing the package from transportation. The
documentation must provide sufficient justification to pursue further
investigation into the contents of a package. This section further
provides that an agent must limit this removal to a maximum 48-hour
period in order to determine whether the package may pose an imminent
hazard. The 48-hour window begins when the written order is issued to
the person with custody and control of the package. This limitation was
added in response to a comment regarding the delay of packages subject
to OOS orders. Dow states that packages that are taken out of service,
opened and inspected, and then later found compliant will result in
shipment delay and shutdown of customer processes. DGAC expresses
similar concern about extended delays that may result from each
instance where a package is removed or goods are stopped in transit,
because the package is effectively placed out of service. PHMSA agrees
that a removal under these circumstances should be limited in time in
order to provide carriers with a date certain as to when packages may
resume transportation if brought into compliance. Forty-eight hours
serves as

a workable timeframe for terms of an OOS order to be addressed, or
enough time for an imminent hazard investigation to be completed.
    In addition, agents must present written notification stating the
reason for removal to the person in possession of the package to be
removed. A notification provision was added because the removal of a
package from transportation due to an imminent hazard is inherently an
emergency situation. Accordingly, the affected party must be promptly
informed about the action taken so that it may begin to take immediate
corrective action.
Sec.  109.9 Transportation for Examination and Analysis
    Proposed Sec.  109.3(b)(4)(iv) stated that an agent may order the
person in possession of, or responsible for, the package to have it
transported to, opened, and the contents examined and analyzed by, a
facility capable of conducting such examination and analysis. The
substance of this provision is now located at Sec.  109.9,
Transportation for examination and analysis. This section has been
revised in response to comments requesting greater detail as to how and
when a package may be ordered to be transported for further examination
and analysis. As stated in Sec.  109.9(a), a package may be ordered to
be transported to an appropriate facility if it requires further
examination, presents conflicting information, or if additional
investigation is not possible on the immediate premises.
    This section implements 49 U.S.C. 5121(c)(1)(E), which provides
that under terms and conditions specified by the Secretary, an agent
may order the party in possession of the package, or otherwise
responsible for the shipment, to have it transported to, opened, and
examined at an appropriate facility if the agent determines that it is
not practicable to examine the contents of a package at the time and
location of the stop. This provision enables DOT to facilitate learning
about the nature of the product inside the shipment by permitting
delivery of the shipment to a facility where its contents can be
identified. PHMSA intends for DOT to employ this remedy only when an
on-site inspection is inadequate or a facility has the sophisticated
personnel, equipment, and information technology to assist in the
inspection or investigation. Although removal of a package for further
analysis is new authority provided by statute to work in conjunction
with package opening, this provision is a simply new method to enforce
existing statutory authority, which is to ensure the safe
transportation of hazardous materials.
    Under proposed Sec.  109.3(b)(4)(v), properly qualified personnel
may be asked to assist DOT when the agents open, detain, or remove a
shipment, if it is possible that a package may experience a leak,
spill, or release. There was an error in the NPRM with regard to Sec.
109.4(b)(iv); the last subparagraph of Sec.  109.3(b) was identified as
(iv) when it should have been (v). This provision is now located at
Sec.  109.11, Assistance of properly qualified personnel, and also
states that if an agent is not properly qualified to perform a
function, or if safety might be compromised, an agent may authorize the
assistance of properly qualified personnel. This section was revised in
response to a comment requesting further clarification regarding the
circumstances in which properly qualified personnel would be asked to
assist.
Sec.  109.13 Closing Packages and Safe Resumption of Transportation
    Closure of opened packages and their return to transportation
remained an issue of great interest among commenters. Many commenters
had questions as to how packages would be reclosed, who would reclose
them, and how the packages would reenter the stream of commerce. In
formulating responses to these comments, the agency decided that a
significant revision of this provision was necessary.
    Proposed Sec.  109.3(b)(5)-(6) attempted to cover the reclosing
process and the resumption of transportation, but without much success.
Details were lacking and all possible scenarios were not addressed. The
content of these two sections were parsed out in what is now Sec.
109.13, Closing packages and safe resumption of transportation. The
first provision, Sec.  109.13(a), entitled No imminent hazard found,
addresses what happens if no imminent hazard is found and the package
contains hazardous material that is otherwise found to be compliant. If
an imminent hazard is not found, an agent will assist in reclosing the
package in accordance with the packaging manufacturer's closure
instructions or other appropriate method; mark and certify the package
as opened by an identified Federal agent and reclosed under this part;
and return the package from whom it was obtained. Packages containing
perishable hazardous material will be given expeditious treatment after
it is determined there is no imminent hazard.
    Section 109.13(b), entitled Imminent hazard found, addresses the
situation in which an imminent hazard is found. In the event of an
imminent hazard, an out-of-service order will be issued, prohibiting
the movement of the package until it has been brought into compliance.
The package will not be reclosed by a DOT agent because a non-compliant
package posing an imminent hazard will not be permitted to enter into,
or continue in, transportation. Moreover, DOT is not obligated to bring
an offeror's package into compliance, as it is the offeror's
responsibility to maintain compliance for its shipments. The recipient
of the OOS order must remove the package from transportation until it
is brought into compliance. Although this was implicit in the operation
of emergency orders, it was necessary to articulate the possibility
nonetheless. This language did not exist in the NPRM, but upon
reconsideration of this section, it was added for clarity.
    Section 109.13(c), entitled Package does not contain hazardous
material, addresses the situation in which a package is opened and does
not contain hazardous material. The agent will securely close the
package, mark and certify its opening and closing by a Federal agent,
and return the package to transportation. Because there is no hazardous
material at issue, there would be no further packaging or reclosing
obligations and the package may continue in transportation.
    Section 109.13(d), entitled Package contains hazardous materials
not in compliance with this Chapter, presents the final possibility
when a package is opened: If a package contains hazardous material not
in compliance with Federal hazmat law or the HMR. If the opening of a
package reveals noncompliant hazmat that does not pose an imminent
hazard, the agent will not close the package as there is no obligation
to bring that package into compliance.
    The Department's operating administrations will not be responsible
for bringing an otherwise non-compliant package into compliance and
resuming its movement in commerce. If the package does not conform to
the HMR at the time of inspection, the fact that a DOT official opened
it in the course of an inspection or investigation will not make DOT or
its agent responsible for bringing the package into compliance.
    Section 109.15 Termination, (former Sec.  109.3(c)) states that the
operating administration will close the investigative file and inform
the subject party of the decision when the agency determines that no
further action is necessary, and that DOT will notify respondent that
the file has been closed without prejudice to further investigation.
The substance of this

provision is now located at Sec.  109.15, Termination, and includes
language that reserves civil enforcement at a later time as is
necessary to carry out the Federal hazmat law.
Sec.  109.17 Emergency Orders
    Proposed Sec.  109.5 Emergency orders, which implements 49 U.S.C.
5121(d), authorizes DOT operating administrations to issue or impose
emergency restrictions, prohibitions, OOS orders, and recalls. The
predicate for issuing an emergency order is a violation of Federal
hazmat law or the HMR, or an unsafe condition or practice, whether or
not it violates an existing statutory or regulatory requirement, which
amounts to or is causing an imminent hazard. PHMSA believes that such
an extraordinary remedy is necessary to address emergency situations or
circumstances involving a hazard of death, illness, or injury to
persons affected by an imminent hazard. Cf. United Transp. Union v.
Lewis, 699 F.2d 1109, 1113 (11th Cir. 1983) (FRA emergency order
authority is necessary to abate unsafe conditions or practices that
extend to hazard of death or injury to persons); 49 U.S.C. 46105(c)
(FAA is authorized to issue orders to meet existing emergency relating
to safety in air commerce); 49 U.S.C. 521(b)(5) (FMCSA permitted to
order a motor carrier OOS when vehicle or operation constitutes an
imminent hazard to safety, i.e., ``substantially increases the
likelihood of serious injury or death if not discontinued
immediately'').
    The Department intends that each operating administration issue an
emergency order only after an inspection, investigation, testing, or
research determines that an imminent hazard exists that requires
exercising this enforcement tool to eliminate the particular hazard and
protect public safety. The order must articulate a sufficient factual
basis that addresses the emergency situation warranting prompt
prohibitive action. The operating administrations will have authority
to take immediate measures to address a particular safety or security
threat.
    As proposed, the provisions addressing emergency orders were
located at Sec.  109.5 as well as in Sec.  109.3(b)(6). In the final
rule, PHMSA has decided to bring all matters regarding emergency orders
into the same location, Sec.  109.17 Emergency Orders. Proposed Sec.
109.3(b)(6), now located at Sec.  109.17(a), addresses the general
criteria for when an Administrator may issue or impose emergency
restrictions, prohibitions, recalls, or out-of-service orders when an
imminent hazard is present. Under this authority, the agency may order
a company to immediately discontinue any or all operations based on any
unsafe condition or practice causing an imminent hazard. An emergency
order identifying the terms and conditions of such a restriction or
prohibition may also prescribe necessary actions to abate the imminent
hazard before operations may be resumed.
    In the NPRM, the procedures for an OOS order were located at
proposed Sec.  109.3(b)(6), following the package opening authority, in
the section under inspection and investigation. This provision is now
located at Sec.  109.17(b), where it makes better sense to have OOS
orders organized as a subtopic of emergency orders. Section 109.17(b)
authorizes the Administrator of each operating administration, or his/
her designee, to issue an OOS order prohibiting the movement of a
package until the imminent hazard is abated and the package has been
brought into compliance with the HMR. Consequently, if an agent
determines that a package presents an imminent hazard, the carrier or
other person in possession of, or responsible for, the package must
remove the package from transportation until it is brought into
compliance with the HMR. OOS orders ensure that if a package presents
an imminent hazard, immediate action is taken to abate that hazard.
ProposedSec.  109.3(b)(6)(i), now located at Sec.  109.17(b)(2),
provides that a package subject to an OOS order may be moved from the
place where it is first discovered to present an imminent hazard to the
nearest location where remedial action can be taken to abate the hazard
and bring the package into compliance with the HMR, provided that
before the move, the agent issuing the OOS order is notified of the
planned move on a 24-hour basis.
    Proposed Sec.  109.3(b)(6)(ii), now located at Sec.  109.17(b)(3),
requires that the recipient of an OOS order notify the agent who issued
the order when the package is brought into compliance with the HMR.
    Proposed Sec.  109.3 (b)(6)(iii), now located at Sec.
109.17(b)(4), provides an appeal process for a recipient of an OOS
order to challenge the issuance of the order. The appeal process for
OOS orders is consistent with the appeal process proposed for other
types of emergency orders set forth in Sec.  109.17, discussed below.
    Proposed Sec.  109.5(a), now located at Sec.  109.17(a), outlines
the critical elements that must be established before an agency may
issue an emergency order. Principally, the order must be in writing and
describe the violation, condition or practice that is causing the
imminent hazard; enumerate the terms and conditions of the order; be
circumscribed to abate the imminent hazard; and inform the recipient
that it may seek administrative review of the order by filing a
petition with PHMSA's CSO. In other words, the order must be narrowly
tailored to the discrete and specific safety hazard and identify the
corrective action available to remedy the hazard. Due to the urgent
nature of the action, a petitioner will have 20 calendar days to file
the petition after the emergency order is issued. See 49 U.S.C.
5121(d)(3). This provision ensures that the operating administrations
employ uniform procedures and standards when issuing emergency orders
and provides a degree of certainty and predictability to the regulated
community about the requisite elements to establish a prima facie
emergency order.
    Proposed Sec.  109.5(a)(4), now located at Sec.  109.17(a)(4), was
revised to provide notice regarding a formal hearing request in
accordance with 5 U.S.C. 554. A recipient must provide the material
facts in dispute giving rise to the request for a hearing. PHMSA has
also added Sec.  109.17(a)(5) in the final regulatory text, which
references Sec.  109.19(f) for filing and service requirements. All
documents related to a petition for review must be filed with DOT
Docket Operations and served on all relevant parties, as detailed in
Sec.  109.19(f).
    Proposed Sec.  109.7, Emergency Recalls, is now located at Sec.
109.17(c) so that the procedures for all agency actions addressing
emergency situations may be found in the same section. This provision
implements 49 U.S.C. 5121(d). Generally, PHMSA received new recall
authority in HMSSTRA to work hand-in-hand with our previous authority
under 49 U.S.C. 5103(b)(1)(A)(iii) to prescribe regulations for the
safe transportation, including security, of hazardous materials in
intrastate, interstate, and foreign commerce. Specifically, PHMSA, in
consultation with relevant operating administrations, will recall
packagings, containers, or package components which were improperly
designed, manufactured, fabricated, inspected, marked, maintained,
reconditioned, repaired, or tested but sold as qualified DOT packages,
containers, or packaging components for use in the transportation of
hazardous materials in commerce.

Sec.  109.19 Petitions for Review of Emergency Orders
    PHMSA provides a party with administrative due process rights to
seek redress of an emergency order, and thus, proposed Sec.  109.5(b),
now located at Sec.  109.19 Petitions for review of emergency orders,
sets forth requirements for filing a petition for administrative review
of an emergency order. The petition must: (1) Be in writing; (2)
specifically state which part of the emergency order is being appealed;
and (3) indicate whether a formal administrative hearing is requested.
If a petitioner requests a hearing, the party must detail the material
facts in dispute giving rise to the hearing request. In this final
rule, Sec.  109.19(a)(4) (which was proposed as Sec.  109.5(b)(4) in
the NPRM), now references the service and filing requirements of Sec.
109.19(f) instead of providing separate instructions in this paragraph
as originally proposed.
    Proposed Sec.  109.5(c), now located at Sec.  109.19(b), provides
that the Office of Chief Counsel of the operating administration that
issued the emergency order may file a response, including appropriate
pleadings, with the CSO within five days after receiving the petition.
PHMSA believes this short turnaround is adequate to enable the issuing
operating administration to present evidence and argument supporting
the emergency order. PHMSA notes that Congress mandated that DOT must
resolve the petition within 30 days of its receipt unless the operating
administration issues a subsequent order extending the original order,
pending review of the petition. See 49 U.S.C. 5121(d)(4).
    Proposed Sec.  109.5(d), now located at Sec.  109.19(c), provides
that the PHMSA CSO will review the petition and response and issue a
decision within 30 days upon receipt of the petition if the petitioner
does not request a formal hearing or the petition fails to assert
material facts in dispute. The CSO's decision constitutes final agency
action in this instance. Alternatively, if the petition contains a
request for a formal hearing and states material facts in dispute, the
CSO will assign the petition to DOT's Office of Hearings. PHMSA thus
designates its CSO as the first line of review of emergency orders. It
is possible that the PHMSA CSO may amend, affirm, lift, modify, stay,
or vacate the emergency order upon review. An additional provision was
added in the final regulatory text in Sec.  109.19(c)(1) under the
CSO's responsibilities for cases in which a hearing is requested.
Unless the CSO issues an order determining no material facts are in
dispute and will be decided on the merits, a formal hearing request
will be deemed assigned to the Office of Hearings three calendar days
after the CSO receives it. This internal mechanism will ensure that the
Office of Hearings has sufficient time to complete the hearing process
and aid the agency in meeting the statutory requirement of 30 days to
act on a petition for review.
    PHMSA believes that its CSO should serve as the primary adjudicator
of petitions. Designating a single decision maker to handle all
petitions will promote consistency in the application of review
standards. The CSO is the lead safety authority in PHMSA, which is the
agency that issues the HMR, interprets the Federal hazmat law and its
implementing regulations, and oversees DOT's hazardous materials
transportation program.
    Proposed Sec. Sec.  109.5(e)-(h), now located at Sec. Sec.
109.19(d)-(g) set out the administrative hearing procedures that the
Department's Office of Hearings will employ. Upon receiving the
petition from the CSO, the Chief Administrative Law Judge will assign
it to an Administrative Law Judge (ALJ), who will schedule and conduct
an ``on the record'' hearing under 5 U.S.C. 554, 556, and 557. PHMSA
believes that a petitioner should be afforded a formal hearing that
addresses the merits of a petition to ensure that a record is created
in a proceeding that will form the basis for final agency action and
judicial review, if necessary. The ALJ process is not new; DOT
currently utilizes it for enforcement proceedings. The timeline for
which the ALJ proceedings must begin and conclude are new, however, as
49 U.S.C. 5121(d)(4) mandates petitions for review must be adjudicated
within 30 days of filing. Thus, the ALJ must issue a report and
recommendation within 25 days after receipt of the petition for review
by the Chief Safety Officer.
    Proposed Sec.  109.5(g), entitled ``Service,'' is now located at
Sec.  109.19(f) and entitled ``Filing and service.'' This section also
provides that all documents must be filed with DOT Docket Operations,
and identifies the parties which must be served. PHMSA believes one
location for filing and service requirements of all documents makes the
regulatory text more consistent and easier to understand.
    Proposed Sec.  109.5(e), now located at Sec.  109.19(d), provides
that an ALJ may administer oaths and affirmations, issue subpoenas as
authorized by each operating administration's regulations, enable the
parties to engage in discovery, and conduct settlement conferences and
hearings to resolve disputed factual issues. PHMSA expects ALJs to
conduct efficient and expeditious proceedings, including controlling
discovery actions, to enable the parties to obtain relevant information
and present material arguments at a hearing within the time parameters
established. Proposed Sec.  109.5(f), now located at Sec.  109.19(e),
permits a petitioner to appear in person or through an authorized
representative. The representative need not be an attorney. The
operating administration, however, would be represented by an attorney
from its Office of Chief Counsel. Proposed Sec.  109.5(g), now located
at Sec.  109.19(f), delineates the service rules governing the
emergency order and review process. Generally, parties may effect
service by electronic transmission via e-mail (with the pertinent
document in Adobe PDF format attached) or facsimile, certified or
registered mail, or personal delivery. Additionally, the operating
administration that issued the emergency order must identify the list
of persons, including the Department's docket management system, to
receive the order and serve it by ``hand delivery,'' unless such
delivery is not practicable.
    Proposed Sec.  109.5(h), now located at Sec.  109.19(g), requires
the ALJ to issue a report and recommendation when the record is closed.
The decision must contain factual findings and legal conclusions based
on legal authorities and evidence presented on the record, which is
part of an ALJ's existing authority. Critically, the decision must be
issued within 25 days after the CSO receives the petition, which is a
new requirement under the statute. Under proposed Sec.  109.5(i), now
located at Sec.  109.19(h), which codifies 49 U.S.C. 5121(d)(4), the
emergency order will no longer be effective if the ALJ or CSO has not
ruled on the petition within 30 days of the CSO's receipt of the
petition, unless the Administrator who issued the emergency order
determines in writing that the imminent hazard continues to exist. The
order then remains in effect pending the disposition of the petition
unless stayed or modified by the Administrator. PHMSA maintains that
this provision implementing new regulatory authority to issue emergency
orders on the basis of an imminent hazard is necessary to ensure that
the order is extended to abate the imminent hazard.
    Proposed Sec.  109.5(j), now located at Sec.  109.19(i), provides
that an aggrieved party may file a petition for reconsideration of the
ALJ's report and

recommendation within one day of the issuance of the decision. This is
an existing provision of DOT regulations for parties seeking
reconsideration of agency action. The CSO then must issue a final
agency decision no later than 30 days from the receipt of the petition
for review, unless a subsequent emergency order is issued. In that
case, the CSO has three calendar days to render the decision after
receiving the petition for reconsideration. The CSO's decision on the
merits of a petition for reconsideration constitutes final agency
action.
    Proposed Sec.  109.5(k), now located at Sec.  109.19(j) enables an
aggrieved party to seek judicial review of either the CSO's
administrative decision or the CSO's adoption of the ALJ's report and
recommendation (final agency action). Consistent with existing
remedies, judicial review is available in an appropriate U.S. Court of
Appeals under 49 U.S.C. 5127, 49 U.S.C. 20114(c), 28 U.S.C. 2342, and 5
U.S.C. 701-706. All parties should note that the filing of a petition
will not stay or modify the force and effect of final agency action
unless otherwise ordered by the appropriate U.S. Court of Appeals.
    Proposed Sec.  109.5(l), now located at Sec.  109.19(k), specifies
the computation of time in the adjudications process.
Sec.  109.21 Remedies Generally
    In addition to seeking relief in Federal court with respect to an
imminent hazard, this section defines the need for general remedies
available through litigation. An Administrator may request the Attorney
General to bring an action in the appropriate U.S. district court for
all other necessary or appropriate relief, including, but not limited
to, injunctive relief, punitive damages, and assessment of civil
penalties as provided by 49 U.S.C. 5122(a). Proposed Sec.  109.9, now
located at Sec.  109.21, authorizes an Administrator to request DOJ to
bring a cause of action in the appropriate U.S. district court seeking
legal and equitable relief, including civil penalties, punitive
damages, temporary restraining orders, and preliminary and permanent
injunctions, to enforce the Hazmat Law, HMR, or an order, special
permit, or approval issued. DOT's ability to request DOJ's assistance
to petition for injunctive relief in district court to enforce the
Federal hazmat law is an existing remedy.

Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C.
5103(b) which authorizes the Secretary to prescribe regulations for the
safe transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce and under the authority of
49 U.S.C. 5121(e). The final rule would revise PHMSA's inspection and
enforcement procedures in PHMSA's regulations to implement 49 U.S.C.
5121(c) and (d), as amended by HMTSSRA. Specifically, this final rule
implements the enhanced inspection and enforcement authority mandated
by Section 7118 by enabling DOT to open, detain, and remove packages
from transportation where appropriate, and issue emergency orders
limiting or restricting packages from transportation. The final rule
carries out the statutory mandate and clarifies DOT's role and
responsibilities in ensuring that hazardous materials are being safely
transported and promoting the regulated community's understanding and
compliance with regulatory requirements applicable to specific
situations and operations.

B. Executive Orders 12866, 13563, and DOT Regulatory Policies and
Procedures

    This final rule is a significant regulatory action under section
3(f) of Executive Order 12866 and, therefore, was reviewed by the
Office of Management and Budget consistent with Executive Orders 12866
and 13563. This rule is also significant under the Regulatory Policies
and Procedures of the DOT (44 FR 11034). We completed a final
regulatory evaluation and placed it in the docket for this rulemaking.
This final rule finalizes 49 CFR Part 109, which contains regulations
on DOT inspection and investigation procedures. These regulations are
not part of the HMR, which govern the transportation of hazmat, thus
they do not carry any additional compliance requirements or costs for
entities that must comply with the HMR. It is possible, however, that
some carriers or shippers, who in the absence of this rule would have
refused to open a package when requested, may experience delays that
they would not have otherwise faced. DOT is not aware of any cases of
shippers or carriers refusing to open packages and so anticipates that
these costs will be minimal.

C. Executive Orders 13132 and 13084

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). As
amended by HMTSSRA, 49 U.S.C. 5125(i) provides that the preemption
provisions in Federal hazardous material transportation law do ``not
apply to any procedure * * * utilized by a State, or Indian tribe to
enforce a requirement applicable to the transportation of hazardous
material.'' Accordingly, this final rule has no preemptive effect on
State, local, or Indian tribe enforcement procedures and penalties, and
preparation of a federalism assessment is not warranted.
    This final rule has also been analyzed in accordance with the
principles and criteria contained in Executive Order 13084
(``Consultation and Coordination with Indian Tribal Governments'').
Because this final rule does not significantly or uniquely affect the
communities of the Indian tribal governments and does not impose
substantial direct compliance costs, the funding and consultation
requirements of Executive Order 13084 do not apply.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines that a rule is not expected to have
significant impact on a substantial number of small entities. Based on
the assessment in the regulatory evaluation I hereby certify that the
final rule will not have a significant economic impact on a substantial
number of small entities. This final rule applies to offerors and
carriers of hazardous materials, some of which are small entities;
however, there will not be any economic impact on any person who
complies with Federal hazardous materials law and the regulations and
orders issued under that law.
    Potentially affected small entities. The provisions in this final
rule will apply to persons who perform, or cause to be performed,
functions related to the transportation of hazardous materials in
transportation in commerce. This includes offerors of hazardous
materials and persons in physical control of a hazardous material
during transportation in commerce. Such persons may primarily include
motor carriers, air carriers, vessel operators, rail carriers,
temporary storage facilities, and intermodal transfer facilities.
Unless alternative definitions have been established by the agency in
consultation with the Small Business Administration, the definition of
``small business'' has the same meaning as under the Small Business Act
(15 CFR parts 631-657c). Therefore, since no

such special definition has been established, PHMSA employs the
thresholds (published in 13 CFR 121.201) of 1,500 employees for air
carriers (NAICS Subgroup 481), 500 employees for rail carriers (NAICS
Subgroup 482), 500 employees for vessel operators (NAICS Subgroup 483),
$18.5 million in revenues for motor carriers (NAICS Subgroup 484), and
$18.5 million in revenues for warehousing and storage companies (NAICS
Subgroup 493). Of the approximately 116,000 entities to which this
final rule would apply (104,000 of which are motor carriers), we
estimate that about 90 percent are small entities.
    Potential cost impacts. This final rule finalizes 49 CFR part 109,
which contains regulations on DOT inspection and investigation
procedures. These regulations are not part of the HMR, which govern the
transportation of hazmat, thus they do not carry any additional
compliance requirements or costs for entities that must comply with the
HMR. It is possible, however, that some carriers or shippers, who in
the absence of this rule would have refused to open a package when
requested, may experience delays that they would not have otherwise
faced. DOT is not aware of any cases of shippers or carriers refusing
to open packages and so anticipates that these costs will be minimal.
    Alternate proposals for small business. Because this final rule
addresses a Congressional mandate, we have limited latitude in defining
alternative courses of action. The option of taking no action would be
both inconsistent with Congress' direction and undesirable from the
standpoint of safety and enforcement. Failure to implement the new
authority will perpetuate the problem of undeclared hazardous material
shipments and resulting incidents or releases. It will also leave PHMSA
and other operating administrations without an effective plan to abate
an imminent safety hazard.

E. Paperwork Reduction Act

    PHMSA has analyzed this final rule in accordance with the Paperwork
Reduction Act of 1995 (PRA). The PRA requires Federal agencies to
minimize the paperwork burden imposed on the American public by
ensuring maximum utility and quality of federal information, ensuring
the use of information technology to improve government performance,
and improving the federal government's accountability for managing
information collection activities. This final rule contains no new
information collection requirements subject to the PRA.

F. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. The final rule will not result in
annual costs of $141.3 million or more, in the aggregate, to any of the
following: State, local, or Indian tribal governments, or the private
sector, and is the least burdensome alternative to achieve the
objective of the proposed rule.

G. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires Federal agencies to analyze proposed actions to determine
whether an action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order Federal agencies to conduct an environmental review considering
(1) the need for the proposed action; (2) alternatives to the proposed
action; (3) probable environmental impacts of the proposed action and
alternatives; and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b).
1. Purpose and Need
    Congress enacted HMTSSRA in part to combat the problem of
undeclared hazardous materials shipments. The broader authority of
HMTSSRA allows the Department to identify hazardous materials shipments
and to determine whether those shipments are made in accordance with
the HMR. Congress determined that this authority would equip DOT
officials, law enforcement, and inspection personnel with the necessary
tools to accurately determine whether hazardous materials are being
transported safely and in accordance with the relevant law and
regulations. See Background section of the preamble to this final rule,
supra.
2. Alternatives
    Because this final rule addresses a Congressional mandate, we have
limited latitude in defining alternative courses of action. The option
of taking no action would be both inconsistent with Congress' direction
and undesirable from the standpoint of safety and enforcement. Failure
to implement the new authority will perpetuate the problem of
undeclared hazardous material shipments and resulting incidents or
releases. It will also leave PHMSA and other operating administrations
without an effective plan to abate an imminent safety hazard.
3. Analysis of Environmental Impacts
    The selected alternative could result in decreasing the likelihood
of an incident, or a release of hazardous material, e.g., explosives,
flammables, or corrosives. These hazardous materials could ignite,
leak, or react with other material, thereby causing fires and
explosions in confined spaces such as aircraft or vessels. If such
incidents occurred while an aircraft or vessel is in transportation,
the consequences would likely threaten human health and the
environment. If hazardous material shipments are not properly marked,
labeled, packaged, and handled, every person who comes into contact
with the shipment could be at risk. Emergency responders would not be
able to extinguish a fire in the most effective and timely manner
because an undeclared shipment would not contain the correct hazard
communications, thus possibly exacerbating the situation or prolonging
the public's exposure to a release.
4. Consultations and Public Comment
    Before preparing this final rule, we invited all interested persons
to offer comments on topics related to this final rule at public
meetings and in response to the published NPRM. We received no comments
regarding environmental concerns.

H. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
spring and fall of each year. The RIN contained in the heading of this
document, RIN 2137-AE13, can be used to cross-reference this action
with the Unified Agenda.

I. Privacy Act

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

List of Subjects in 49 CFR Part 109

    Definitions, Inspections and investigations, Emergency orders,
Imminent hazards, Remedies generally.

The Rule

[squf] In consideration of the foregoing, PHMSA adds a new part 109 to
Title 49, Subtitle B, Chapter 1, Subchapter A to read as follows:

PART 109--DEPARTMENT OF TRANSPORTATION HAZARDOUS MATERIALS
PROCEDURAL REGULATIONS FOR OPENING OF PACKAGES, EMERGENCY ORDERS,
AND EMERGENCY RECALLS

Subpart A--Definitions
Sec.
109.1 Definitions.
Subpart B--Inspections and investigations
109.3 Inspections and investigations.
109.5 Opening of packages.
109.7 Removal from transportation.
109.9 Transportation for examination and analysis.
109.11 Assistance of properly qualified personnel.
109.13 Closing packages/safe resumption of transportation.
109.15 Termination.
Subpart C--Emergency Orders
109.17 Emergency orders.
109.19 Petitions for review of emergency orders.
109.21 Remedies generally.

    Authority:  49 U.S.C. Sec. Sec.  5101-5128, 44701; Pub. L. 101-
410 Sec.  4 (28 U.S.C. 2461 note); Pub. L. 104-121 Sec. Sec.  212-
213; Pub. L. 104-134 Sec.  31001; 49 CFR 1.45, 1.53.

Subpart A--Definitions

Sec.  109.1  Definitions.

    For purposes of this part, all terms defined in 49 U.S.C. 5102 are
used in their statutory meaning. Other terms used in this part are
defined as follows:
    Administrator means the head of any operating administration within
the Department of Transportation, and includes the Administrators of
the Federal Aviation Administration, Federal Motor Carrier Safety
Administration, Federal Railroad Administration, and Pipeline and
Hazardous Materials Safety Administration, to whom the Secretary has
delegated authority in part 1 of this title, and any person within an
operating administration to whom an Administrator has delegated
authority to carry out this part.
    Agent of the Secretary or agent means a Federal officer, employee,
or agent authorized by the Secretary to conduct inspections or
investigations under the Federal hazardous material transportation law.
    Chief Safety Officer or CSO means the Assistant Administrator of
the Pipeline and Hazardous Materials Safety Administration.
    Emergency order means an emergency restriction, prohibition,
recall, or out-of-service order set forth in writing.
    Freight container means a package configured as a reusable
container that has a volume of 64 cubic feet or more, designed and
constructed to permit being lifted with its contents intact and
intended primarily for containment of smaller packages (in unit form)
during transportation.
    Immediately adjacent means a packaging that is in direct contact
with the hazardous material or is otherwise the primary means of
containment of the hazardous material.
    Imminent hazard means the existence of a condition relating to
hazardous material that presents a substantial likelihood that death,
serious illness, severe personal injury, or a substantial endangerment
to health, property, or the environment may occur before the reasonably
foreseeable completion date of a formal proceeding begun to lessen the
risk of that death, illness, injury, or endangerment.
    In writing means unless otherwise specified, the written expression
of any actions related to this part, rendered in paper or digital
format, and delivered in person; via facsimile, commercial delivery,
U.S. Mail; or electronically.
    Objectively reasonable and articulable belief means a belief based
on particularized and identifiable facts that provide an objective
basis to believe or suspect that a package may contain a hazardous
material.
    Out-of-service order means a written requirement issued by the
Secretary, or a designee, that an aircraft, vessel, motor vehicle,
train, railcar, locomotive, other vehicle, transport unit, transport
vehicle, freight container, portable tank, or other package not be
moved or cease operations until specified conditions have been met.
    Packaging means a receptacle and any other components or materials
necessary for the receptacle to perform its containment function in
conformance with the minimum packing requirements of this subchapter.
For radioactive materials packaging, see Sec.  173.403 of subchapter C
of this chapter.
    Perishable hazardous material means a hazardous material that is
subject to significant risk of speedy decay, deterioration, or
spoilage, or hazardous materials consigned for medical use, in the
prevention, treatment, or cure of a disease or condition in human
beings or animals where expeditious shipment and delivery meets a
critical medical need.
    Properly qualified personnel means a company, partnership,
proprietorship, or individual who is technically qualified to perform
designated tasks necessary to assist an agent in inspecting, examining,
opening, removing, testing, or transporting packages.
    Related packages means any packages in a shipment, series or group
of packages that can be traced to a common nexus of facts, including,
but not limited to: The same offeror or packaging manufacturer; the
same hazard communications information (marking, labeling, shipping
documentation); or other reasonable and articulable facts that may lead
an agent to believe such packages are related to a package that may
pose an imminent hazard. Packages that are located within the same
trailer, freight container, unit load device, etc. as a package removed
subject to this enhanced authority without additional facts to
substantiate its nexus to an imminent hazard are not ``related
packages'' for purposes of removal. The related packages must also
demonstrate that they may pose an imminent hazard. They must exhibit a
commonality or nexus of origin, which may include, but are not limited
to, a common offeror, package manufacturer, marking, labeling, shipping
documentation, hazard communications, etc.
    Remove means to keep a package from entering the stream of
transportation in commerce; to take a package out of the stream of
transportation in commerce by physically detaining a package that was
offered for transportation in commerce; or stopping a package from
continuing in transportation in commerce.
    Safe and expeditious means prudent measures or procedures designed
to minimize delay.

Subpart B--Inspections and Investigations

Sec.  109.3  Inspections and Investigations.

    (a) General authority. An Administrator may initiate an inspection
or investigation to determine compliance with Federal hazardous
material transportation law, or a regulation, order, special permit, or
approval prescribed or issued under the Federal hazardous material
transportation law, or any court decree or order relating thereto.
    (b) Inspections and investigations. Inspections and investigations
are conducted by designated agents of the Secretary who will, upon
request, present their credentials for examination. Such an agent is
authorized to:

    (1) Administer oaths and receive affirmations in any matter under
investigation.
    (2) Gather information by any reasonable means, including, but not
limited to, gaining access to records and property (including
packages), interviewing, photocopying, photographing, and video- and
audio-recording in a reasonable manner.
    (3) Serve subpoenas for the production of documents or other
tangible evidence if, on the basis of information available to the
agent, the evidence is relevant to a determination of compliance with
the Federal hazardous material transportation law, regulation, order,
special permit, or approval prescribed or issued under the Federal
hazardous material transportation law, or any court decree or order
relating thereto. Service of a subpoena shall be in accordance with the
requirements of the agent's operating administration as set forth in 14
CFR 13.3 (Federal Aviation Administration); 49 CFR 209.7 (Federal
Railroad Administration), 49 U.S.C. 502(d), 5121(a) (Federal Motor
Carrier Safety Administration), and 49 CFR 105.45-105.55 (Pipeline and
Hazardous Materials Safety Administration).

Sec.  109.5  Opening of packages.

    (a) When an agent has an objectively reasonable and articulable
belief that a package offered for or in transportation in commerce may
contain a hazardous material and that such a package does not otherwise
comply with this chapter, the agent may--
    (1) Stop movement of the package in transportation and gather
information from any person to learn the nature and contents of the
package;
    (2) Open any overpack, outer packaging, or other component of the
package that is not immediately adjacent to the hazardous materials
contained in the package and examine the inner packaging(s) or
packaging components.

Sec.  109.7  Removal from transportation.

    An agent may remove a package and related packages in a shipment or
a freight container from transportation in commerce for up to forty-
eight (48) hours when the agent has an objectively reasonable and
articulable belief that the packages may pose an imminent hazard. The
agent must record this belief in writing as soon as practicable and
provide written notification stating the reason for removal to the
person in possession.

Sec.  109.9  Transportation for examination and analysis.

    (a) An agent may direct a package to be transported to a facility
for examination and analysis when the agent determines that:
    (1) Further examination of the package is necessary to evaluate
whether the package conforms to subchapter C of this chapter;
    (2) Conflicting information concerning the package exists; or
    (3) Additional investigation is not possible on the immediate
premises.
    (b) In the event of a determination in accordance with paragraph
(a) of this section, an agent may:
    (1) Direct the offeror of the package, or other person responsible
for the package, to have the package transported to a facility where
the material may be examined and analyzed;
    (2) Direct the packaging manufacturer or tester of the packaging to
have the package transported to a facility where the packaging may be
tested in accordance with the HMR; or
    (3) Direct the carrier to transport the package to a facility
capable of conducting such examination and analysis.
    (c) The 48-hour removal period provided in Sec.  109.7 may be
extended in writing by the Administrator pending the conclusion of
examination and analysis under this section.

Sec.  109.11  Assistance of properly qualified personnel.

    An agent may authorize properly qualified personnel to assist in
the activities conducted under this part if the agent is not properly
qualified to perform a function that is essential to the agent's
exercise of authority under this part or when safety might otherwise be
compromised by the agent's performance of such a function.

Sec.  109.13  Closing packages and safe resumption of transportation.

    (a) No imminent hazard found. If, after an agent exercises an
authority under Sec.  109.5, the agent finds that no imminent hazard
exists, and the package otherwise conforms to applicable requirements
in subchapter C of this chapter, the agent will:
    (1) Assist in preparing the package for safe and prompt
transportation, when practicable, by reclosing the package in
accordance with the packaging manufacturer's closure instructions or
other appropriate closure method;
    (2) Mark and certify the reclosed package to indicate that it was
opened and reclosed in accordance with this part;
    (3) Return the package to the person from whom the agent obtained
it, as soon as practicable; and
    (4) For a package containing a perishable hazardous material,
assist in resuming the safe and expeditious transportation of the
package as soon as practicable after determining that the package
presents no imminent hazard.
    (b) Imminent hazard found. If an imminent hazard is found to exist
after an agent exercises an authority under Sec.  109.5, the
Administrator or his/her designee may issue an out-of-service order
prohibiting the movement of the package until the package has been
brought into compliance with subchapter C of this chapter. Upon receipt
of the out-of-service order, the person in possession of, or
responsible for, the package must remove the package from
transportation until it is brought into compliance.
    (c) Package does not contain hazardous material. If, after an agent
exercises an authority under Sec.  109.5, the agent finds that a
package does not contain a hazardous material, the agent shall securely
close the package, mark and certify the reclosed package to indicate
that it was opened and reclosed, and return the package to
transportation.
    (d) Non-compliant package. If, after an agent exercises an
authority under Sec.  109.5, the agent finds that a package contains
hazardous material and does not conform to requirements in subchapter C
of this chapter, but does not present an imminent hazard, the agent
will return the package to the person in possession of the package at
the time the non-compliance is discovered for appropriate corrective
action. A non-compliant package may not continue in transportation
until all identified non-compliance issues are resolved.

Sec.  109.15  Termination.

    When the facts disclosed by an investigation indicate that further
action is not warranted under this Part at the time, the Administrator
will close the investigation without prejudice to further investigation
and notify the person being investigated of the decision. Nothing
herein precludes civil enforcement action at a later time related to
the findings of the investigation.

Subpart C--Emergency Orders

Sec.  109.17  Emergency Orders.

    (a) Determination of imminent hazard. When an Administrator
determines that a violation of a provision of the Federal hazardous

material transportation law, or a regulation or order prescribed under
that law, or an unsafe condition or practice, constitutes or is causing
an imminent hazard, as defined in Sec.  109.1, the Administrator may
issue or impose emergency restrictions, prohibitions, recalls, or out-
of-service orders, without advance notice or an opportunity for a
hearing. The basis for any action taken under this section shall be set
forth in writing which must--
    (1) Describe the violation, condition, or practice that constitutes
or is causing the imminent hazard;
    (2) Set forth the terms and conditions of the emergency order;
    (3) Be limited to the extent necessary to abate the imminent
hazard; and,
    (4) Advise the recipient that, within 20 calendar days of the date
the order is issued, recipient may request review; and that any request
for a formal hearing in accordance with 5 U.S.C. 554 must set forth the
material facts in dispute giving rise to the request for a hearing; and
    (5) Set forth the filing and service requirements contained in
Sec.  109.19(f), including the address of DOT Docket Operations and of
all persons to be served with the petition for review.
    (b) Out-of-service order. An out-of-service order is issued to
prohibit the movement of an aircraft, vessel, motor vehicle, train,
railcar, locomotive, transport unit, transport vehicle, or other
vehicle, or a freight container, portable tank, or other package until
specified conditions of the out-of-service order have been met.
    (1) Upon receipt of an out-of-service order, the person in
possession of, or responsible for, the package must remove the package
from transportation until it is brought into compliance with the out-
of-service order.
    (2) A package subject to an out-of-service order may be moved from
the place where it was found to present an imminent hazard to the
nearest location where the package can be brought into compliance,
provided that the agent who issued the out-of-service order is notified
before the move.
    (3) The recipient of the out-of-service order must notify the
operating administration that issued the order when the package is
brought into compliance.
    (4) Upon receipt of an out-of-service order, a recipient may appeal
the decision of the agent issuing the order to PHMSA's Chief Safety
Officer. A petition for review of an out-of-service order must meet the
requirements of Sec.  109.19.
    (c) Recalls. PHMSA's Associate Administrator, Office of Hazardous
Materials Safety, may issue an emergency order mandating the immediate
recall of any packaging, packaging component, or container certified,
represented, marked, or sold as qualified for use in the transportation
of hazardous materials in commerce when the continued use of such item
would constitute an imminent hazard. All petitions for review of such
an emergency order will be governed by the procedures set forth at
Sec.  109.19.

Sec.  109.19  Petitions for review of emergency orders.

    (a) Petitions for review. A petition for review must--
    (1) Be in writing;
    (2) State with particularity each part of the emergency order that
is sought to be amended or rescinded and include all information,
evidence and arguments in support thereof;
    (3) State whether a formal hearing in accordance with 5 U.S.C. 554
is requested, and, if so, the material facts in dispute giving rise to
the request for a hearing; and,
    (4) Be filed and served in accordance with Sec.  109.19(f).
    (b) Response to the petition for review. An attorney designated by
the Office of Chief Counsel of the operating administration issuing the
emergency order may file and serve, in accordance with Sec.  109.19(f),
a response, including appropriate pleadings, within five calendar days
of receipt of the petition by the Chief Counsel of the operating
administration issuing the emergency order.
    (c) Chief Safety Officer Responsibilities.
    (1) Hearing requested. Upon receipt of a petition for review of an
emergency order that includes a formal hearing request and states
material facts in dispute, the Chief Safety Officer shall immediately
assign the petition to the Office of Hearings. Unless the Chief Safety
Officer issues an order stating that the petition fails to set forth
material facts in dispute and will be decided under paragraph (c)(2) of
this section, a petition for review including a formal hearing request
will be deemed assigned to the Office of Hearings three calendar days
after the Chief Safety Officer receives it.
    (2) No hearing requested. For a petition for review of an emergency
order that does not include a formal hearing request or fails to state
material facts in dispute, the Chief Safety Officer shall issue an
administrative decision on the merits within 30 days of receipt of the
petition. The Chief Safety Officer's decision constitutes final agency
action.
    (d) Hearings. Formal hearings shall be conducted by an
Administrative Law Judge assigned by the Chief Administrative Law Judge
of the Office of Hearings. The Administrative Law Judge may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided by the appropriate agency
regulations (49 CFR 209.7, 49 CFR 105.45, 14 CFR 13.3, and 49 U.S.C.
502 and 31133);
    (3) Adopt the relevant Federal Rules of Civil Procedure for the
United States District Courts for the procedures governing the hearings
when appropriate;
    (4) Adopt the relevant Federal Rules of Evidence for United States
Courts and Magistrates for the submission of evidence when appropriate;
    (5) Take or cause depositions to be taken;
    (6) Examine witnesses at the hearing;
    (7) Rule on offers of proof and receive relevant evidence;
    (8) Convene, recess, adjourn or otherwise regulate the course of
the hearing;
    (9) Hold conferences for settlement, simplification of the issues,
or any other proper purpose; and,
    (10) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of an issue raised therein.
    (e) Parties. The petitioner may appear and be heard in person or by
an authorized representative. The operating administration issuing the
emergency order shall be represented by an attorney designated by its
respective Office of Chief Counsel.
    (f) Filing and service. (1) Each petition, pleading, motion,
notice, order, or other document submitted in connection with an order
issued under this subpart must be filed (commercially delivered or
submitted electronically) with: U.S. Department of Transportation,
Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC 20590. All documents filed will
be published on the Department's docket management Web site, http://www.regulations.gov. The emergency order shall state the above filing
requirements and the address of DOT Docket Operations.
    (2) Service. Each document filed in accordance with paragraph
(f)(1) of this section must be concurrently served upon the following
persons:
    (i) Chief Safety Officer (Attn: Office of Chief Counsel, PHC),
Pipeline and Hazardous Materials Safety Administration, U.S. Department
of Transportation, 1200 New Jersey

Avenue, SE., East Building, Washington, DC 20590 (facsimile: 202-366-
7041) (electronic mail: PHMSAChiefCounsel@dot.gov);
    (ii) The Chief Counsel of the operating administration issuing the
emergency order;
    (iii) If the petition for review requests a formal hearing, the
Chief Administrative Law Judge, U.S. Department of Transportation,
Office of Hearings, M-20, Room E12-320, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 (facsimile:<PHONE_NUMBER>).
    (iv) Service shall be made personally, by commercial delivery
service, or by electronic means if consented to in writing by the party
to be served, except as otherwise provided herein. The emergency order
shall state all relevant service requirements and list the persons to
be served and may be updated as necessary. The emergency order shall
also be published in the Federal Register as soon as practicable after
its issuance.
    (3) Certificate of service. Each order, pleading, motion, notice,
or other document shall be accompanied by a certificate of service
specifying the manner in which and the date on which service was made.
    (4) The emergency order shall be served by ``hand delivery,''
unless such delivery is not practicable, or by electronic means if
consented to in writing by the party to be served.
    (5) Service upon a person's duly authorized representative, agent
for service, or an organization's president constitutes service upon
that person.
    (g) Report and recommendation. The Administrative Law Judge shall
issue a report and recommendation at the close of the record. The
report and recommendation shall:
    (1) Contain findings of fact and conclusions of law and the grounds
for the decision based on the material issues of fact or law presented
on the record;
    (2) Be served on the parties to the proceeding; and
    (3) Be issued no later than 25 days after receipt of the petition
for review by the Chief Safety Officer.
    (h) Expiration of order. If the Chief Safety Officer, or the
Administrative Law Judge, where appropriate, has not disposed of the
petition for review within 30 days of receipt, the emergency order
shall cease to be effective unless the Administrator issuing the
emergency order determines, in writing, that the imminent hazard
providing a basis for the emergency order continues to exist. The
requirements of such an extension shall remain in full force and effect
pending decision on a petition for review unless stayed or modified by
the Administrator.
    (i) Reconsideration.
    (1) A party aggrieved by the Administrative Law Judge's report and
recommendation may file a petition for reconsideration with the Chief
Safety Officer within one calendar day of service of the report and
recommendation. The opposing party may file a response to the petition
within one calendar day of service of a petition for reconsideration.
    (2) The Chief Safety Officer shall issue a final agency decision
within three calendar days of service of the final pleading, but no
later than 30 days after receipt of the original petition for review.
    (3) The Chief Safety Officer's decision on the merits of a petition
for reconsideration constitutes final agency action.
    (j) Appellate review. A person aggrieved by the final agency action
may petition for review of the final decision in the appropriate Court
of Appeals for the United States as provided in 49 U.S.C. 5127. The
filing of the petition for review does not stay or modify the force and
effect of the final agency.
    (k) Time. In computing any period of time prescribed by this part
or by an order issued by the Administrative Law Judge, the day of
filing of the petition for review or of any other act, event, or
default from which the designated period of time begins to run shall
not be included. The last day of the period so computed shall be
included, unless it is a Saturday, Sunday, or Federal holiday, in which
event the period runs until the end of the next day which is not one of
the aforementioned days.

Sec.  109.21  Remedies generally.

    An Administrator may request the Attorney General to bring an
action in the appropriate United States district court seeking
temporary or permanent injunctive relief, punitive damages, assessment
of civil penalties as provided by 49 U.S.C. 5122(a), and any other
appropriate relief to enforce the Federal hazardous material
transportation law, regulation, order, special permit, or approval
prescribed or issued under the Federal hazardous material
transportation law.

    Issued in Washington, DC, on February 17, 2011 under authority
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-4270 Filed 3-1-11; 8:45 am]
BILLING CODE 4910-60-P


[Federal Register Volume 84, Number 41 (Friday, March 1, 2019)]
[Notices]
[Pages 7159-7160]
[FR Doc No: 2019-03632]

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

SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-85191; File No. SR-C2-2018-022]

Self-Regulatory Organizations; Cboe C2 Exchange, Inc.; Order
Approving a Proposed Rule Change To Provide for the Trading of Complex
Reserve Orders

February 25, 2019.

I. Introduction

    On November 8, 2018, Cboe C2 Exchange, Inc. (``C2'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to provide for the trading of Complex Reserve
Orders. The proposed rule change was published for comment in the
Federal Register on November 27, 2018.\3\ On December 19, 2018, the
Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to approve or disapprove the proposed
rule change.\4\ The Commission has received no comment letters
regarding the proposed rule change. This order approves the proposed
rule change.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 84643 (November 21,
2018), 83 FR 60916 (``Notice''). In addition to the changes
described herein, the proposal makes non-substantive changes to
revise the heading of C2 Rule 6.13(g) and to add headings to C2 Rule
6.13(h)(1) and (2). See id. at nn. 10 and 13.
    \4\ See Securities Exchange Act Release No. 84867, 83 FR 66811
(December 27, 2018). The Commission designated February 25, 2019, as
the date by which the Commission shall approve the proposed rule
change, disapprove the proposed rule change, or institute
proceedings to determine whether to approve or disapprove the
proposed rule change.
---------------------------------------------------------------------------

II. Description of the Proposed Rule Change

    As described more fully in the Notice,\5\ C2 proposes to amend its
rules to provide for the trading of Complex Reserve Orders. C2 notes
that it currently offers Reserve Order functionality for simple
orders.\6\ C2 states that Reserve Orders provide Users with additional
flexibility to manage and display their orders and additional control
over their executions on C2.\7\
---------------------------------------------------------------------------

    \5\ See note 3, supra.
    \6\ See Notice, 83 FR at 60917, and C2 Rule 6.10.
    \7\ See Notice, 83 FR at 60917-8.
---------------------------------------------------------------------------

    A Complex Reserve Order is a complex limit order with both a
portion of the quantity displayed (``Display Quantity'') and a reserve
portion of the quantity (``Reserve Quantity'') not displayed.\8\ Both
the Display Quantity and Reserve Quantity of the Complex Reserve Order
are available for potential execution pursuant to C2 Rules 6.13(c)-
(e).\9\ Displayed complex orders resting on the Complex Order Book
(``COB'') have priority over non-displayed portions of Complex Reserve
Orders resting on the COB.\10\ When entering a Complex Reserve Order, a
User must instruct the Exchange as to the quantity of the Complex
Reserve Order to be initially displayed by C2's System (``Max
Floor'').\11\ If the Display Quantity of a Complex Reserve Order is
fully executed, the System will replenish the display quantity in
accordance with the User's instruction.\12\ If the remainder of a
Complex Reserve Order is less than the replenishment amount, the System
will display the entire remainder of the Complex Reserve Order.\13\ The
System creates a new timestamp for both the Display Quantity and
Reserve Quantity of the Complex Reserve Order each time it is
replenished from reserve.\14\
---------------------------------------------------------------------------

    \8\ See proposed C2 Rule 6.13(b)(6).
    \9\ See id. Pursuant to C2 Rules 6.13(c)-(e), complex orders
(including the Display and Reserve Quantities of Complex Reserve
Orders) may execute during the Complex Order Book opening process,
against incoming complex orders, against simple orders in the Simple
Book (via Legging), or following a Complex Order Auction. Complex
Reserve Orders will be COA-eligible, subject to a User's
instructions. See Notice, 83 FR at n.5.
    \10\ See proposed C2 Rule 6.13(h)(4). The COB is the Exchange's
electronic book of complex orders. See C2 Rule 6.13
    \11\ See proposed C2 Rule 6.13(b)(6). The System is the
automated trading system the Exchange uses for the trading of option
contracts. See C2 Rule 100.
    \12\ The proposed rule provides two replenishment instructions.
Under the Random Replenishment instruction, the System randomly
replenishes the Display Quantity for the Complex Reserve Order with
a number of contracts not outside a replenishment range, which
equals the Max Floor plus and minus a replenishment value
established by the User when entering a Complex Reserve Order with a
Random Replenishment instruction. For any Complex Reserve Order for
which a User does not select Random Replenishment, the System will
replenish the Display Quantity of the Complex Reserve Order with the
number of contracts equal to the Max Floor (or the entire remainder
of the Complex Reserve Order if it is less than the replenishment
amount). See proposed C2 Rule 6.13(b)(6).
    \13\ See id.
    \14\ See id.
---------------------------------------------------------------------------

    The proposal addresses the participation of Complex Reserve Orders
in the Complex Order Auction (``COA''). If a COA-eligible order is a
Complex Reserve Order, the COA auction message will identify only the
Display Quantity, although the entire quantity of the order (both the
Display Quantity and Reserve Quantity) may execute following the COA
pursuant to C2 Rule 6.13(d)(5).\15\ COA Responses may be larger than
the COA-eligible order.\16\ The System caps the size of aggregated COA
Responses for an Executing Firm ID (``EFID'') at the size of the COA-
eligible order (including Display Quantity and Reserve Quantity) if the
COA-eligible order is a Complex Reserve Order).\17\ At the conclusion
of the COA, the System executes the COA-eligible order against contra
side interest in price priority.\18\ At the same price, the COA-
eligible order will execute first against orders and quotes in the
Simple Book (both displayed and non-displayed orders) for the
individual leg components of the complex order, and then against COA
Responses and unrelated orders posted to the COB.\19\ A do-not-COA
order \20\ or an order resting on the COB that is eligible for
execution will execute against contra side interest at the same price
by trading with orders and quotes in the Simple Book (both displayed
and non-displayed orders) for the individual leg components of the
complex order before executing against complex orders resting on the
COB at that price.\21\
---------------------------------------------------------------------------

    \15\ See proposed C2 Rule 6.13(d)(1). C2 Rule 6.13(b)(2) states
that buy (sell) complex orders with User instructions to (or which
default to) initiate a COA that are priced higher (lower) than the
SBB (SBO) and higher (lower) than the price of complex orders
resting at the top of the COB are ``COA-eligible orders,'' while buy
(sell) complex orders with User instructions not to (or which
default to not) initiate a COA, that are marked Post Only, or that
are priced equal to or lower (higher) than the SBB (SBO) or equal to
or lower (higher) than the price of complex orders resting at the
top of the COB are ``do-not-COA orders.''
    \16\ See proposed C2 Rule 6.13(d)(4)(B).
    \17\ See id.
    \18\ See proposed C2 Rule 6.13(d)(5).
    \19\ See proposed C2 Rule 6.13(d)(5)(A). The Simple Book is the
electronic book of simple orders and quotes maintained by the
System. See C2 Rule 100.
    \20\ See note 15, supra.
    \21\ See proposed C2 Rule 6.13(e)(1). The entire quantity of a
Complex Reserve Order (both the Display Quantity and Reserve
Quantity) Legs into the Simple Book at the same time, and any
quantity that does not execute pursuant to C2 Rule 6.13(d) or (e)
after Legging will rest in the COB in accordance with the Complex
Reserve Order instruction. See proposed C2 Rule 6.13(g)(5).

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

III. Discussion and Commission Findings

    After careful review, the Commission finds that the proposed rule
change is consistent with the requirements of the Act,\22\ and the
rules and regulations thereunder applicable to a national securities
exchange.\23\ In particular, the Commission finds that the proposed
rule change is consistent with Section 6(b)(5) of the Act,\24\ which
requires, among other things, that the rules of a national securities
exchange be designed 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, and that the
rules are not designed to permit unfair discrimination between
customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \22\ 15 U.S.C. 78f.
    \23\ In approving this proposed rule change, the Commission has
considered the proposed rule's impact on efficiency, competition,
and capital formation. See 15 U.S.C. 78c(f).
    \24\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    The Commission believes that Complex Reserve Orders could provide
market participants with greater flexibility and control over the
trading of their complex orders and could allow them to provide
additional liquidity to the market. The Commission notes that C2
currently offers Reserve Order functionality for simple orders.\25\
Under the proposal, displayed complex orders resting on the COB will
have priority over the non-displayed portions of Complex Reserve Orders
resting on the COB.\26\ As described above, the proposal further
provides that complex orders will execute against displayed and non-
displayed leg market interest before executing against complex order
interest at the same price.\27\ The Commission notes that complex
orders on C2 currently execute against leg market interest (displayed
first and then non-displayed) before executing against complex order
interest.\28\ While displayed interest ordinarily executes before non-
displayed interest at the same price to encourage market participants
to submit displayed interest, the Commission believes that executing
non-displayed leg market interest before complex interest at the same
price should facilitate interaction between the single leg and complex
markets and provide all single leg interest at a given price, displayed
and non-displayed, with an opportunity to participate in executions
with complex orders.
---------------------------------------------------------------------------

    \25\ See note 6, supra.
    \26\ See proposed C2 Rule 6.13(h)(4).
    \27\ See proposed C2 Rules 6.13(d)(5)(A)(i) and (e)(1) and notes
19-21, supra, and accompanying text.
    \28\ See C2 Rules 6.13(d)(5)(A) and (e).
---------------------------------------------------------------------------

IV. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\29\ that the proposed rule change (SR-C2-2018-022) is approved.
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\30\
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Eduardo A. Aleman,
Deputy Secretary.
[FR Doc. 2019-03632 Filed 2-28-19; 8:45 am]
 BILLING CODE 8011-01-P


Ohio PCS Direct Discharger Loadings ( pcsload. sd2)

Pollutant loadings for PCS facilities in Ohio directly discharging.

Data Element Definitions CAS_ NO  Pollutant Chemical Abstract Number PRAM_ NAM  Pollutant name ID  Identification number NPDES  Pollutant discharge permit identification number for the facility PARAMETE  STORET parameter name LBYO  estimated loading calculated with remarked data set to zero ( lb/ yr) LBYE  estimated loading calculated with remarked data set to half detection limit ( lb/ yr) LBY1  estimated loading calculated with remarked data set to detection limit ( lb/ yr) LBYOVER  portion of estimated loading over permit in lb/ yr BCU  BASINS assigned cataloging unit STATE  Two letter state abbreviation NAME  Facility name