Federal Register Vol. 81, No.231,

Background Section 4007: Student Eligibility Disqualifications

Students enrolled at least half-time in an institution of higher education are ineligible to participate in SNAP under section 6(e)(3)(B) of the Food and Nutrition Act of 2008 (the Act), as amended, and 7 CFR 273.5(a). There are several exemptions to this prohibition, one of which is for students assigned to or placed in an institution of higher education under a SNAP E&T program.

Section 4007 of the 2014 Farm Bill (Public Law 113-79) amends Section 6(e)(3)(B) of the Act by providing additional detail as to what SNAP E&T-assigned education programs and/or courses satisfy the exemption for higher education under a SNAP E&T program. In particular, section 4007 provides that the exemption is limited to those who are enrolled in a course or program of study that is part of a program of career and technical education (as defined in Section 3 of the Carl D. Perkins Career and Technical Education Act of 2006) (the Perkins Act) that may be completed in not more than 4 years at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965), or enrolled in courses for remedial education, basic adult education, literacy, or English as a second language.

Currently, individuals enrolled at least half-time in an institution of higher education are not eligible for SNAP benefits unless the individual meets at least one of the exemption criteria under 7 CFR 273.5(b), including section 273.5(b)(11)(ii), which exempts individuals assigned to an E&T program under section 273.7. The E&T exception to the student rule, as described at section 273.7(e)(1)(vi), includes educational programs or activities to improve basic skills or otherwise improve employability including educational programs determined by the State agency to expand the job search abilities or employability of those subject to the program. The State must establish a link between the education and job-readiness.

The Department of Agriculture (the Department) is proposing to revise section 273.5(b)(11)(ii) to incorporate section 4007's modifications to the eligibility requirements for students who are participating in an E&T education component. The additional language would essentially track the language in Section 4007. Criteria contained at section 273.7(e)(1)(vi) are also proposed to be revised to include courses or programs of study that are part of a program of career and technical education (as defined in section 3 of the Perkins Act). Other criteria contained at section 273.7(e)(1)(vi) would remain unchanged. For example, individuals participating in remedial courses, basic adult education, literacy instruction or English as a second language would also continue to qualify for the student exemption. The purpose of this exemption is to connect participants to programs that lead to employment and economic self-sufficiency. The Department strives to ensure that SNAP E&T programs are aligned with effective practices in workforce development. As such, for the purpose of this exemption, courses or programs of study that are part of a program of career and technical education may be offered concurrently or contextually with remedial courses, basic adult education, literacy instruction or English as a second language.

Section 3 of the Perkins Act provides a general definition of the term “career and technical education.” The Department understands that States have some discretion to determine what courses meet that general definition. That is, while all States have adopted the basic definition, they also have State-specific criteria as well. For example, States may choose to include more rigorous requirements or specific courses, among other individually-tailored standards. The Department also notes that the program does not have to be receiving Perkins funding, it would just need to meet the general definition. For these reasons, the Department believes that State agencies are in the best position to determine what courses or programs of study are parts of a program that meets the definition of career and technical education under the Perkins Act for SNAP as well. The Department is interested in receiving comments on following this approach.

Section 4007 provides that the course or program of study may be completed in not more than four years. The Department notes that many students pursuing four-year degrees are unable to finish in that time. Therefore, the Department is proposing that students participating in qualifying courses or programs of study that are designed to be completed in up to four years, but actually take longer than four years to complete, satisfy the new requirement.

Thirty-four States offered education components through their E&T programs in FY 2015. These States would need to evaluate whether those components meet the student eligibility criteria proposed in this rule. However, the Department believes that the cost implications of this proposed rule for those States are minimal and the provisions do not materially alter the rights and obligations of SNAP recipients because there would continue to be work requirement exemptions for students enrolled more than half-time in an institution of higher education under section 273.7(b)(viii).

Section 4008 of the 2014 Farm Bill added new section 6(r)(1) to the Act to prohibit anyone convicted of certain sexual crimes, child abuse, and murder who are also not in compliance with the terms of their sentence, or who are fleeing felons or parole or probation violators as described in section 6(k) of the Act, from receiving SNAP benefits. The listed offenses in section 4008 include the following: (i) Aggravated sexual abuse under section 2241 of Title 18, United States Code, (ii) murder under section 1111 of Title 18, United States Code, (iii) sexual exploitation and other abuse of children under chapter 110 of Title 18, United States Code, (iv) a Federal or State offense involving sexual assault, as defined in section 40002(a) of the Violence Against Women Act of 1994 (42 U.S.C. 13925(a)), or (v) an offense under State law determined by the United States Attorney General to be substantially similar to the offenses in (i) through (iii) above.

Section 4008 also imposes a new requirement that individuals applying for SNAP benefits must attest whether the applicant, or any other member of the household, was convicted of any of the listed Federal offenses or substantially similar State offenses. The provisions in section 4008 do not apply to convictions for conduct occurring on or before the date of enactment of the 2014 Farm Bill, February 7, 2014.

Section 4008 also provides that although those disqualified from receiving SNAP benefits under this provision are not SNAP-eligible members of the household, their income and resources are to be considered in determining the eligibility and value of the benefits for the rest of the household.

The Department is proposing to revise the regulations at section 273.11 by adding a new subsection (section 273.11(s)) to include the language contained in section 4008. The regulatory provision would essentially track the language in the statute, and would specify that the provision would not apply to convictions for conduct occurring on or before February 7, 2014. Fleeing felons and probation or parole violators covered in section 273.11(n) are also cited in proposed section 273.11(s) as ineligible for SNAP benefits.

The Department notes that before passage of the 2014 Farm Bill, section 6(k) of the Act, (reflected at section 273.11(n)), already prohibited certain fleeing felons and probation and parole violators from receiving SNAP benefits. The Department published a proposed rule, Clarification of Eligibility of Fleeing Felons (76 FR 51907), on August 19, 2011, and the final rule (80 FR 54410) on September 10, 2015, to implement section 4112 of the Food, Conservation, and Energy Act of 2008, Public Law 110-246, which required the Secretary of Agriculture to define the terms “fleeing” and “actively seeking.”

Section 4008 does not affect the existing prohibition that precludes fleeing felons and probation or parole violators from obtaining SNAP benefits under section 6(k) of the Act. The proposed § 273.11(s) would extend SNAP ineligibility to those individuals with convictions for Federal or State offenses as described in section 4008 who are also out of compliance with the terms of their sentence. The intent of the proposed subsection(s) is not to exclude individuals who have been convicted of such a crime but who have complied with the terms of their sentence, probation or parole.

This regulatory provision would apply to adults and to minors convicted as adults. It would not apply to minors who are under 18 unless they are convicted as adults. The Department understands that under Federal Law, juvenile offenses are penalized through “juvenile delinquencies” or “juvenile adjudications” rather than convictions and sentences, and that States have similar distinctions. Therefore, the Department believes that Congress did not intend to include such individuals in the prohibition.

Relatedly, section 273.2(j)(2)(vii) lists households that must never be considered categorically eligible for SNAP benefits. Section 273.2(j)(2)(vii)(D) already prohibits a household from being categorically eligible if any member of the household is ineligible under § 273.11(m) by virtue of a conviction for a drug-related felony. In this rule, the Department proposes to revise section 273.2(j)(2)(vii)(D) to add convicted felons under section 273.11(s) and fleeing felons and probation or parole violators under section 273.11(n) to this subsection. This prohibition from categorical eligibility would apply to households containing individuals disqualified as a result of having certain convictions and not being in compliance with the sentence as provided in proposed section 273.11(s). It also would apply to households containing a fleeing felon or individual violating parole or probation, a prohibition which was inadvertently not captured in the Department's September 10, 2015 rule, Clarification of Eligibility of Fleeing Felons (80 FR 54410).

State agencies are reminded that Privacy Act restrictions and confidentiality provisions found at section 11(e)(8) of the Act remain intact for individuals who would be covered by this proposed rule. A request for information about a SNAP recipient or applicant by law enforcement officials must be made during the proper exercise of an official duty. Information about potential convicted felons covered by section 4008 of the 2014 Farm Bill whether it is alleged that they have been convicted for Federal or State crimes listed in section 4008 and are violating their sentences, or who are fleeing felons or parole or probation violators, must not be released to other persons such as bounty hunters, who are not official law enforcement representatives of a Federal or State entity.

State agencies would be required to establish clear and consistent standards for determining whether an individual is not in compliance with the terms of his or her sentence. Those standards must not be arbitrary or capricious. Standards for determining whether someone is a fleeing felon or probation or parole violator are addressed in the final rule titled Clarification of Eligibility of Fleeing Felons (80 FR 54410) published on September 10, 2015.

Section 4008 gives the United States Attorney General the authority to determine what statutory crimes and sentences convictions are substantially similar under State law. The U.S. Department of Justice (DOJ) may establish guidelines for determining which State offenses are substantially similar to the Federal offenses listed in section 4008. More information on the matter is forthcoming, through either regulations or guidance from DOJ.

Section 4008 also requires every person applying for SNAP benefits to attest whether the individual, or any member of the household of the individual, has been convicted for a crime covered by this section. The Department proposes to add the attestation requirement to the regulations at new paragraph section 273.2(o). In addition to the language contained in section 4008 regarding attestation, the Department also proposes to incorporate other specific standards and procedures for the attestation into the regulation. Although State agencies do have some discretion with the attestation requirement, basic standards will help ensure consistency across State agencies. Those standards are proposed as follows below.

Specifically, the individual applying for benefits would be responsible for attesting whether he or she, or any other household member, has been convicted as an adult of the crimes in section 4008. As part of that attestation, the Department would also require that the household attest as to whether any convicted member is complying with the terms of the sentence. The Department does not believe it is feasible for each individual member of the household to attest. If the SNAP household uses an authorized representative, the authorized representative would complete the attestation. State agencies would be required to update their application process to include the attestation requirement. It may be done in writing, verbally, or both, provided that the attestation is legally binding in the State. States could accomplish this by, for example, adding the attestation to the application for benefits, or by updating their interview process to include the attestation. The Department expects that the attestation would take place during the interview process, and anticipates that most attestations will be in writing. If an applicant is not present in person to hand in an application along with the attestation, the Department prefers that the State agency accept a written as opposed to verbal attestation and not require individuals to come into the office solely for the purpose of completing an attestation. To do otherwise could place an undue burden on the household and have a negative effect on program access. The attestation would be documented in the case file. Whatever procedure a State chooses to implement would need to be reasonable and consistent for all households applying for SNAP benefits, and would need to be part of certification and recertification procedures. The Department believes this discretion provides State agencies the flexibility to determine a standard that best suits their needs and administrative structures, while still supporting uniformity and legal enforceability.

The State agency would be required to verify any attestation that no member of the household has been convicted as an adult of the crimes in this section if its veracity is questionable. The State agency would have the discretion to determine what makes an attestation questionable. In the event an attestation is questionable, the State agency would have to evaluate each case separately, using a reasonable standard established by the State to ensure consistency for all cases, and document the case file accordingly. At a minimum, the Department expects that State agencies would verify each element of the attestation—that the individual has been convicted of a crime listed in section 4008, and that the individual is not in compliance with the terms of their sentence.

The Department is also proposing that the State agency must verify when the household attests that there is a disqualified felon not in compliance with the sentence to avoid any unnecessary confusion on the part of the household. That is, if a SNAP applicant attests to being a convicted felon not in compliance with the sentence, or attests that another member of the household is a convicted felon not in compliance with the sentence, the State agency would be responsible for verifying the disqualified felon status of the individual. The Department believes the State agency is in a better position than applicants to understand the specific requirements of the attestation and to obtain appropriate verification. Also, an applicant who attests for other members of the household may not have all of the information or a clear understanding of the situation involving that household member, and the State agency would be able to more reliably confirm felon status and whether the individual is complying with the sentence. The State agency would need to establish a reasonable standard to ensure consistency for all cases, and document the case file accordingly, in order to properly conduct this verification. The Department proposes to codify this requirement at section 273.2(f)(5)(i). The Department reminds State agencies that under section 273.2(f)(3) they have the option to implement mandatory verification where appropriate.

Section 4009 of the Farm Bill directs the Department to institute new regulations regarding the receipt of substantial lottery or gambling winnings among SNAP households. It provides that any household that receives substantial lottery or gambling winnings, as determined by the Secretary, must lose eligibility for benefits immediately upon receipt of winnings. It also requires that those households remain ineligible until they again meet the allowable financial resources and income eligibility requirements of the Act. Section 4009 also requires the Secretary to set standards for each State agency to establish agreements, to the maximum extent practicable, with entities responsible for the regulation or sponsorship of gaming in the State to identify SNAP individuals with substantial winnings.

Section 4009 requires that households that have received substantial lottery or gambling winnings shall immediately lose eligibility for SNAP benefits, and gives the Secretary authority to define what amount constitutes substantial winnings. In order to implement section 4009, the Department is proposing a new 7 CFR 273.11(r) to codify the disqualification and definition. Substantial lottery or gambling winnings would be defined as a cash prize won in a single game equal to or greater than $25,000 before taxes or other amounts are withheld. If multiple individuals shared in the purchase of a ticket, hand, or similar bet, then only the portion of the winnings allocated to the member of the SNAP household would be counted toward the eligibility determination. Non-cash prizes are not included in the definition of substantial winnings.

FNS based its definition of substantial winnings on the amount that would cause a significant lifestyle change for a majority of SNAP households. Small amounts of winnings that would be quickly spent by a household for common expenses like paying down debt, making car repairs, saving for an apartment security deposit, or buying long put-off necessities would not meet the definition of substantial. One way to understand substantial winnings that would result in a significant lifestyle change is an amount that would push a household's income above the SNAP gross income limits for a household of three considered annually for a given fiscal year. Gross income limits for a household of three would be used to set the threshold because the average SNAP household size is between two and three.

In fiscal year 2017, the gross monthly income limit for a household of three is $2,184. This value multiplied by 12 and rounded to the nearest five thousand equals $25,000. FNS proposes rounding to the nearest $5000 to allow for ease in administration and communication with gaming entities and SNAP recipients. Every new fiscal year the threshold would be re-calculated using the new value for the gross monthly income limit for a household of three for that fiscal year rounded to the nearest five thousand dollars. FNS would provide the adjusted threshold amount to State agencies along with the SNAP income and resource limits each year. FNS asks for comments on this proposed definition of substantial winnings.

All households certified to receive SNAP benefits would be subject to this rule. If a member of a SNAP household wins a substantial amount, the entire SNAP household would lose eligibility for the program. Section 4009 requires that households disqualified by this provision shall remain ineligible for SNAP until that household meets the allowable financial resources and income eligibility requirements under subsections (c), (d), (e), (f), (g), (i), (k), (l), (m) and (n) of section 5 of the Act.

The Department proposes to add a new section 272.17 to codify the requirement in section 4009 by setting standards for States' establishment of cooperative agreements with entities responsible for the regulation or sponsorship of gaming in the State, in order to identify individuals with substantial winnings, as defined by this rule, within their State. Gaming entities would be those entities responsible for the regulation or sponsorship of gaming in the State. Examples include, but are not limited to, State lotteries, casinos, race tracks that permit wagering, off-track betting facilities, State gambling oversight boards, and other entities that regulate gambling in public or private organizations in the State or on Tribal lands. Gaming entities that do not pay-out cash winnings equal to or greater than the substantial amount defined above would not be subject to this rule.

State agencies will not be required to establish cooperative agreements with gaming entities within their State if all gaming activities are deemed illegal by State and Federal law. However, if a State agency becomes aware of a member of a SNAP household receiving benefits within their State who wins substantial lottery or gambling winnings, as defined by this rule, either within or outside their State, then the State agency would be required to enforce this rule for that individual and the individual's household even if gambling is illegal in the State where the household is receiving benefits.

Gaming entities that enter into cooperative agreements with State agencies to identify SNAP recipients with substantial winnings would be responsible for meeting the terms of these agreements. The cooperative agreements would solely allow for the gaming entities to transmit information to State agencies; State agencies would be prohibited from sharing any information about SNAP households with gaming entities. Gaming entities would not be authorized to use data matches to receive or view information on SNAP households. In addition, section 4009 does not require gaming entities to withhold winnings of a substantial amount, as defined by this rule, from a winner. The Department anticipates gaming entities would only share information with the State agency on individuals who win an amount equal to or greater than a substantial amount, as defined by this rule. The State agency would only use the information obtained through the data matches with gaming entities to identify individuals with substantial winnings, as defined by this rule.

The Department anticipates that a cooperative agreement established between the State agency and a gaming entity would specify that the gaming entity, either directly or through a third party, will share information about individuals with substantial winnings, as defined by this rule, over an agreed upon time period with the State agency. As contained in proposed section 273.17(b), at a minimum these agreements would need to specify the type of information to be shared by the gaming entity, the procedures used to share information, the frequency of sharing information, and the job titles of individuals who would have access to the data. Cooperative agreements should also include safeguards limiting release or disclosure of personally identifiable information to parties outside those included in the agreement.

Because the types of lottery and gambling activities allowed within a State, and the administration and oversight of these games, vary from State to State, State agencies would have discretion in determining which types of games and gaming entities will be subject to this rule; however, the Department expects State agencies to include as many gaming entities in their implementation of this rule as is practicable. State agencies should make a good faith effort to enter into cooperative agreements with entities within their State responsible for the regulation or sponsorship of gaming. If a State agency and a gaming entity cannot come to an agreement after the State agency makes a good faith effort, then the State agency need not continue to pursue an agreement with that gaming entity at that time.

State agencies have some discretion to determine how often matches are made to identify winners. FNS expects State agencies to perform matches as frequently as is feasibly possible to identify SNAP recipients with substantial winnings, as defined in this rule. However, at a minimum, matches would be conducted when a recipient files a periodic report and at recertification. The Department proposes to codify this requirement at new section 272.17(d). States would be required to include in their State Plan of Operations the names of gaming entities with whom they have cooperative agreements, the frequency of data matches with these entities, and if the State considers information from the data matches verified upon receipt. The Department proposes to codify this requirement at new section 272.17(e).

SNAP recipients would be required to self-report substantial winnings, as defined in this rule, to the State agency administering the household's benefits within 10 days of collecting the winnings regardless of the State where the winnings were won, in accordance with the 10 day reporting timeframes outlined in section 273.12(a)(2). SNAP recipients would be required to report substantial winnings, as defined in this rule, from State lotteries and other gaming entities both in the State where they receive benefits and in other States, as well as any substantial winnings from multi-state lotteries. If a State agency learns through self-reporting that a SNAP recipient received substantial winnings, as defined by this rule, the State agency must act immediately by closing the entire household's case. Before closing a household's case, the State agency may verify information about self-reported substantial winnings, as defined in this rule, if the information is questionable. The Department proposes to codify the reporting requirements surrounding this disqualification at new section 273.12(a)(1)(viii) and section 273.12(a)(5)(vi)(B)(5). The Department also proposes to add to section 273.12(a)(5)(iii)(E) the requirement that households report when a member of the household wins substantial lottery or gambling winnings in accordance with new section 273.11(r).

State agencies must inform SNAP households upon certification that, should any member of the household win substantial lottery or gambling winnings, as defined in this rule, they must contact the State agency within 10 days to reassess their eligibility for SNAP. Section 4009 only applies to eligibility determinations of enrolled SNAP households, not households who are applying to receive benefits. As a result it would not be necessary to include a question on the initial SNAP application asking applicants if anyone in the household has ever won substantial winnings. However, it is at the discretion of the State agency to determine whether to include a question on the SNAP periodic report or recertification forms asking if anyone in the recipient household has won substantial lottery or gambling winnings, as defined by this rule, since the time of the household's most recent certification. In making this decision States should consider the potential increase in response burden for SNAP households relative to the number of households likely to report substantial winnings.

The Department notes that its rule, Supplemental Nutrition Assistance Program (SNAP): Eligibility, Certification, and Employment and Training Provisions of the Food, Conservation and Energy Act of 2008, is currently in the process to be published as a final rule. That rule also references sections of section 273.12. Assuming that final rule is published by the time this rule is in the final rule process, the Department may be required to re-designate paragraph citations accordingly.

Data received through cooperative agreements with gaming entities may come from a wide variety of gaming entities (e.g. public or private entities; local, statewide or national entities) with varying degrees of reliability. Although verification of information about substantial winnings, as defined in this rule, is required, the Department will leave to State discretion whether information received through data matches will be considered verified upon receipt, and if not, how the State will verify that information. States should establish and apply consistent procedures for verifying substantial lottery and gambling winnings in accordance with sections 273.12(a)(5)(vi)(B) and§ 273.2(f). The Department proposes to codify the requirement that the State agency verify information that a member of the household has won substantial lottery or gambling winnings in accordance with new sections 272.17(c) and 273.12(a)(5)(vi)(B).

If a State agency identifies a SNAP recipient who has received substantial winnings, as defined by this rule, before the recipient reports the collection of winnings, the State would need to verify that information, if it is not considered verified upon receipt. Procedures established in new section 272.17(c) require that if a household is found to have received, during their certification period, substantial winnings, as defined in this rule, prior to any action to terminate the household's benefits, the State agency shall provide the household notice, in accordance with the provisions on notices of adverse action appearing in section 273.13. For households that are found to have received substantial winnings at the time of their case's recertification, the State agency shall provide these households with a notice of denial, in accordance with section 273.10(g)(2). The State agency shall also establish claims as appropriate.

The Department recognizes that some States will consider information received through data matches verified upon receipt, whereas other States will need to pursue verification regardless of how the State has chosen to act on changes. Upon receipt of a positive data match, all States would need to take immediate action to either to pursue verification, as needed, and close the case, if appropriate, regardless of whether the State has chosen to act on all changes or to act only on certain changes.

Section 4009 does not require SNAP applicants to be screened for eligibility based on past lottery or gambling winnings. The only exception would be applicant households containing a member who was previously disqualified for substantial winnings, as defined by this rule, since section 4009 requires that such households remain ineligible until they meet the income and eligibility requirements in the Act detailed in sections 273.8 and 273.9.. The eligibility determinations for these households at the time of re-application would need to be based on the requirements in sections 273.8 and 273.9. To identify members of applicant households previously disqualified for substantial winnings, as defined in this rule, SNAP eligibility workers could conduct a search of past case records or question the household during the interview. The Department feels that including a question on the SNAP application about past disqualification for substantial winnings, as defined in this rule, will unnecessarily burden the vast majority of SNAP applicants not subject to this rule. Other methods, such as those noted above, may be more effective in obtaining the necessary information without adding burden to all SNAP applicants.

Section 4015 of the 2014 Farm Bill amends section 11(p) of the Act by providing that a State agency must use an immigration status verification system established under section 1137 of the Social Security Act (SSA) and an income and eligibility verification system. Before the 2014 Farm Bill, use of these verification systems was optional. In particular, section 11(p) of the Act previously provided that State agencies were not required to use an income and eligibility or immigration status verification system established under section 1137 of the SSA.

The Department proposes to amend the regulations at 7 CFR 273.2(f)(1)(ii) to largely reflect the statutory language in section 4015 by requiring States to use an immigration status verification system established under section 1137 of the SSA (42 U.S.C. 1320b-7) when verifying immigration status of SNAP applicants.

Section 1137(d)(3) of the SSA (42 U.S.C. 1320b-7(d)(3)) requires verification of immigration status “through an automated or other system” designated by the Immigration and Naturalization Service (INS) for use by the States. INS ceased to exist as a result of the Homeland Security Act of 2002, P.L. 107-296, on March 1, 2003, and its functions were transferred from the Department of Justice to the newly-created Department of Homeland Security (DHS). Three agencies were established within DHS—including the U.S. Citizenship and Immigration Services (USCIS).

USCIS administers the Systematic Alien Verification for Entitlements (SAVE) Program to help Federal, State and local agencies authorized to use the service to verify the immigration status of public benefits applicants. SAVE is an inter-governmental web-based service that provides timely immigration status information, thereby allowing those user agencies to ensure that they are issuing public benefits only to individuals entitled to receive them.

USCIS has confirmed with the Department that there are only two ways a SNAP State agency can verify immigration status with USCIS. Both ways are through the SAVE system—either through an electronic search or a manual G-845 paper form search (there is also a G-845 Supplement form if the State agency would like to request more detailed information on immigration status, citizenship and sponsorship). USCIS offers no other options for a SNAP State agency to verify immigration status, and either method would satisfy the immigration verification requirements of section 4015. Typically, the manual search is available after an initial electronic search if additional verification is needed. Whether using the electronic search or manual G-845 forms search, the State agency must sign a memorandum of agreement with USCIS to conduct the verification.

Current SNAP regulations at section 273.2(f)(1)(ii) require that States verify the immigration status of non-citizens who apply for SNAP, but do not mandate the use of SAVE to do so. As Section 4015 now mandates that all States use an immigration status verification system established under Section 1137 of the SSA, in effect, it now requires the use of SAVE to verify immigration status. Therefore, the Department is proposing to revise references to SAVE throughout §§ 272 and 273 to reflect this new mandatory requirement.

Since SAVE is administered by another Federal agency that could change the name or other details of the service, the Department proposes to revise section 273.2(f)(1)(ii) to reflect the broader language of section 4015 in the event USCIS makes any changes to that system. Provisions regarding the optional use of SAVE to verify the validity of documents are available at sections 272.11(a) and 273.2(f)(10) and are proposed to be updated only to reflect the new mandatory requirement that the system be one established under section 1137 of the SSA. Other provisions contained at section 272.11 involve necessary logistical steps for the use of SAVE, such as establishing agreements with INS (now USCIS), and administrative requirements such as use of the data, and are unaffected by this proposed rule. Similarly, other requirements at section 273.2(f)(10), regarding procedures in verifying the validity of documents provided by alien applicants, are unaffected by this proposed rule.

All 53 State agencies (including the District of Columbia, Guam and the Virgin Islands) have indicated to FNS that they currently use the SAVE database, so the Department does not believe the requirement will have a big impact on most States. Because SAVE is the system used by USCIS for immigration status verification, State SNAP agencies' use of SAVE would satisfy the immigration verification requirement in section 4015. Ensuring that all States use an immigration status verification system established under section 1137 of the SSA helps ensure State agencies follow consistent standards in verifying immigration status. The Department may require the State agency to provide written confirmation from USCIS that the system used by the State is an immigration status verification system established under section 1137 of the SSA.

Although section 4015 does not specifically require State agencies to use the electronic SAVE search, USCIS has indicated its preference for the electronic search over the paper-based G-845 SAVE search. This is because the electronic SAVE search is faster and more efficient. The Department also understands that an electronic SAVE search is more cost effective per search than the paper-based process. For these reasons, the Department encourages State agencies to use an electronic before a manual SAVE search.

As a related matter, the Department is taking this opportunity to propose an update of the terminology used in the current regulations for the Federal agency that handles immigration status issues. Current SNAP regulations refer to the Department of Justice (DOJ) Immigration and Naturalization Service (INS) as the entity responsible for fulfilling Federal immigration functions. As previously noted, INS no longer exists and USCIS now oversees lawful immigration to the United States and naturalization of new American citizens, including the management of SAVE. The Department proposes to update references from INS to USCIS throughout sections 271, 272 and 273 accordingly.

To further clarify existing requirements, this proposed rule would more explicitly include in the regulatory text the requirement that State agencies must verify the immigration status of all non-citizens applying for SNAP benefits. Although an applicant must provide documentation of his or her status when applying for benefits, such as a green card, doing so does not negate the State agency's responsibility to verify that status with DHS. This is essential because SNAP eligibility workers do not have the expertise to confirm the validity of those documents. Such confirmation must come from the Federal agency charged with overseeing immigration status issues—DHS' USCIS. This clarification is proposed at sections 273.2(f)(1)(ii) and (f)(10).

Finally, the Department reminds commenters that section 5(i) of the Act and section 273.4(c)(4) of the regulations require that the income and resources of sponsors be deemed to sponsored non-citizens when they apply for SNAP (with exceptions for particular vulnerable populations as listed at section 273.4(c)(3)). Sponsored non-citizens applying for SNAP are required to provide information and documentation about their sponsor's income and resources. The Department understands that SAVE search results provide information on whether or not a non-citizen has a sponsor. The Department proposes to add section 273.2(f)(10)(vi) to allow State agencies to use SAVE to confirm whether an affidavit of support has been executed in accordance with the deeming requirements at section 273.4(c)(2) Since the electronic or manual SAVE searches provide information on whether an individual has an executed affidavit of support (USCIS Form I-864 or I-864A), and sponsor deeming is required, State agencies may use that information as a means to check whether an applicant has a sponsor.

Section 4015 also requires States to use an income and eligibility verification system established under Section 1137 of the SSA in accordance with standards set by the Secretary. Standards for IEVS already exist at section 272.8(a)(1), section 273.2(b)(2) and section 273.2(f)(9). Except for updating these provisions to remove the optional use of IEVS, the Department proposes to maintain current requirements without change. States would need to maintain a system that ensures compliance with the applicant verification standards in section 273.2(f). Those standards contain procedures on, for example, items requiring mandatory verification and verification when questionable, describes sources of verification, among other standards.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This proposed rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this rule would not have a significant impact on a substantial number of small entities. While there may be some burden/impact on State agencies and small entities involved in the gaming industries, the impact is not significant as the burden would be on State agencies to ensure appropriate cooperative agreements are entered into.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $146 million or more (when adjusted for inflation; GDP deflator source: Table 1.1.9 at http://www.bea.gov/iTable) in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule. This proposed rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and Tribal governments or the private sector of $146 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

SNAP is listed in the Catalog of Federal Domestic Assistance Programs under 10.551. For the reasons set forth in the final rule in 7 CFR part 3015, subpart V, and related Notice (48 FR 29115, June 24, 1983), this program is included in the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121. The Department has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect unless so specified in the Effective Dates section of the final rule. Prior to any judicial challenge to the provisions of the final rule, all applicable administrative procedures must be exhausted.

FNS has reviewed this proposed rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. After a careful review of the rule's intent and provisions, FNS has determined that the changes to SNAP regulations in this proposed rule are driven by legislation and therefore required. The Department specifically prohibits the State and local government agencies that administer the program from engaging in discriminatory actions. Discrimination in any aspect of program administration is prohibited by SNAP regulations, the Food and Nutrition Act of 2008, the Age Discrimination Act of 1975, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 and Title VI of the Civil Rights Act of 1964. Where State agencies have options, and they choose to implement a certain provision, they must implement it in such a way that it complies with these requirements and the regulations at 7 CFR 272.6.

Student Provision: This provision implements the provision requiring that the exception provided to participants of a SNAP E&T program is limited to those who are enrolled in a course or program of study that is part of a program of career and technical education (as defined in Section 3 of the Carl D. Perkins Career and Technical Education Act of 2006) that may be completed in not more than 4 years at an institution of higher education (as defined in section 102 of the Higher Education Act of 1965), or enrolled in courses for remedial education, basic adult education, literacy, or English as a second language.

Impact on Households: This mandatory change will be applied uniformly across households. Classification in an E&T program is not based on status in a protected class.

Impact on State Agencies: Thirty-four States offer education components through their E&T programs in FY 2015. These States will need to evaluate whether those components meet the student eligibility criteria proposed in this rule. Impacts are expected to be minimal.

Felon Disqualification: This provision disqualifies individuals who are convicted of certain crimes who are also not in compliance with the terms of their sentence or fleeing felons from receiving SNAP benefits, and requires individuals convicted of those crimes to attest to same.

Impact on Households: The household will be responsible for honestly representing whether any household member has been convicted of the stated crimes. This change is also mandatory and will impact all houses uniformly regardless of status in a protected class. The Department does not have any information that individuals in a protected class are more likely to violate the terms of their sentence or probation or parole. The Department therefore does not anticipate a greater impact on any protected class.

Impact on State agencies: State agencies will be required to update their application processes to obtain the attestation and document same in the case file. State agencies will also be responsible for verifying that those individuals are disqualified felons.

Lottery and Gambling Winnings Disqualification: This provision disqualifies individuals who receive substantial lottery or gambling winnings from receiving SNAP benefits.

Impact on Households: This provision is intended to make households that receive a substantial amount of gambling or lottery winnings ineligible for SNAP. All SNAP households will be subject to this provision equally, whereby if a SNAP household receives substantial winnings they will be made ineligible for benefits until they again meet normal program income and resource requirements.

Impact on State agencies: State agencies are required to implement a data matching system with entities within the state that are involved in lotteries and gaming. As such, this rule will have an impact on those entities involved in cooperative agreements with the State agencies.

Income and Eligibility and Immigration Verification Systems: This provision requires States to have an income and eligibility and immigration verification system.

Impact on Households: This provision will not impact households directly. The Department anticipates that the only potential impact on households will be a benefit in that non-citizens applying for SNAP benefits will have their immigration status verified through more consistent methods across States.

Impact on State agencies: States were required to implement the immigration verification system immediately upon implementation of the 2014 Farm Bill. The vast majority of States already had a system in place that adheres to these requirements. Many States already have an income and eligibility verification in place already as well. For those reasons, the Department does not anticipate that this provision will result in a significant impact on State agencies.

Training and Outreach: SNAP is administered by State agencies which communicate program information and program rules based on Federal law and regulations to those within their jurisdiction, including individuals from protected classes that may be affected by program changes. After the passage of the 2014 Farm Bill, the Department worked with State agencies to ensure their understanding of the changes required by these provisions. The Department released an implementation memorandum on these provisions on March 21, 2014. The Department also shared guidance through a Question & Answer memorandum on June 10, 2014, to address the State agencies' questions and concerns and ensure clarity on requirements for implementing the requirement.

The Department participated in a May 21, 2014, Tribal Consultation on the lottery provision, during which the Department received no significant feedback or questions.

The Department maintains a public Web site that provides basic information on each program, including SNAP. Interested persons, including potential applicants, applicants, and participants can find information about these changes as well as State agency contact information, downloadable applications, and links to State agency Web sites and online applications.

Finding and Conclusion: After careful review of the rule's intent and provisions, and the characteristics of SNAP households and individual participants, the Department has determined that this proposed rule will not have a disparate impact on any group or class of persons.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. The Department participated in a Tribal Consultation on the Lottery provisions of this rule. Tribal organizations with gaming facilities may be approached by the State(s) in which they are located to participate in the cooperative agreements to identify individuals with significant lottery or gambling winnings. The Department also notes that the regulatory changes proposed in this rule regarding students enrolled more than half-time and certain convicted felons will not have a greater substantial direct effect on tribal organizations than all other applicants applying for SNAP. We are unaware of any current Tribal laws that could be in conflict with the final rule.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule proposes information collections that are subject to review and approval by the Office of Management and Budget; therefore, FNS is submitting for public comment the changes in the information collection burden that would result from adoption of the proposals in the rule. In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection.

This is a new collection for proposed rule, Lottery and Gambling Winners in the Supplemental Nutrition Assistance Program, which would require States to make ineligible SNAP participants with substantial lottery or gambling winnings and establish cooperative agreements with gaming entities within their States to identify SNAP participants with substantial winnings. The provisions regarding students, felon disqualification and State eligibility verification systems in this proposed rule do not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1994.

State agencies will be required to make minimal, one-time changes to their application process in order to comply with the provisions of the felon disqualification attestation requirement. Since State agencies are already required to verify the immigration status of non-citizens applying for the program, the impact of this provision is negligible. Other minimal burdens imposed on State agencies by this proposed rule are usual and customary within the course of their normal business activities. These changes are contingent upon OMB approval under the Paperwork Reduction Act of 1995. When the information collection requirements have been approved, FNS will publish a separate action in the Federal Register announcing OMB's approval.

Comments on this information collection pursuant this proposed rule must be received on or before January 30, 2017.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Comments may be sent to: Mary Rose Conroy, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 810, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Mary Rose Conroy at 703-305-2803 or via email to [email protected]. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically. All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

Title: Supplemental Nutrition Assistance Program: Student Eligibility, Convicted Felons, Lottery and Gambling, and State Verification Provisions of the Agricultural Act of 2014.

OMB Number: 0584-NEW.

Expiration Date: [Not Yet Determined.]

Type of Request: New collection

Abstract: This proposed rule is intended to implement several section of the Agricultural Act of 2014 including section 4009 (Ending Supplemental Nutrition Assistance Program Benefits for Lottery or Gambling Winners). This provision makes households in which a members receives substantial lottery and gambling winnings (as determined by the Secretary) ineligible for SNAP until they meet allowable financial resources and income eligibility requirements. The provision also requires States to establish cooperative agreements, to the maximum extent practicable, with entities responsible for gaming in their State in order to identify individuals with substantial winnings.

This rule does not require any recordkeeping burden. Reporting detail burden information is provided below.

The affected public for this collection is 53 State SNAP agencies, 53 State public agency gaming entities, and 159 private business gaming entities. It is estimated that each of the 53 State SNAP agencies will establish cooperative agreements once with one State public agency gaming entity within the State and 3 private business gaming entities within the State for a total of 212 annual responses which will take approximately 320 hours per response for a total of 67,840 annual burden hours. This one time activity includes time for the State SNAP agency to reach out to the State public agency gaming entities and private business gaming entities in the State, negotiate terms for sharing identifying information of winners, establish secure connections for sharing information, and to complete all necessary reviews of agreements by legal counsel and State leadership. Each of the 53 State public agency gaming entities will also incur a burden entering into cooperative agreements with their State SNAP agency, which will take approximately 320 hours per response for a total of 16,960 burden hours. This one time activity includes time for the State public agency gaming entity to negotiate terms for sharing identifying information of winners, establish secure connections for sharing information, and to complete all necessary reviews of agreements by legal counsel and State public agency gaming entity leadership. It is estimated that each of 159 affected private business gaming entities will establish cooperative agreements once with their respective State SNAP agency, which will take approximately 320 hours per response for a total of 50,880 annual burden hours. Our estimate assumes all 53 State SNAP agencies receiving SNAP funding will implement this rule despite large variations in gaming activities from State to State.

It is estimated that each of the 53 State SNAP agencies will create a data matching system once to match information on winners from State public agency gaming entities and private business gaming entities within the State with SNAP participation lists, which will take approximately 160 hours per response for a total of 8,480 annual burden hours. All State SNAP agencies currently make use of other computerized data matching systems (e.g. SAVE for immigration verification), so costs assume States will re-program existing systems.

Once the matching system is in place, for every year thereafter, the State public agency and private business gaming entities will have to enter information into the system for every individual who wins over the threshold for winnings. There is no national database of how many people win large amounts of money in State lotteries or through other gaming activities. For this estimate, it is assumed that each of the 53 State public agency gaming entities would have 200 individuals who win over the threshold in a given year for a total of 10,600 annual responses. It will take approximately 0.08 hours for the State public agency gaming entity to identify the winner and enter the appropriate information into the matching system for a total of 848 annual burden hours per year. In addition, it is estimated that each of the 159 private business gaming entities will identify 100 individuals per year who have won over the threshold for a total of 15,900 annual responses. It will take approximately 0.08 hours for the private business gaming agency to identify the winner and enter the appropriate information into the matching system for a total of 1,272 annual burden hours per year.

Once the matching system is in place, for every year thereafter, the matches between the winner list and SNAP participation list should occur automatically and with negligible cost. For this estimate, it is assumed that each of the 53 State SNAP agencies will positively match with the one State public agency and three private business gaming entities in their respective States an average of 35 records per year for a total annual response of approximately 1,855 SNAP participants nationally. Each of 53 State SNAP agencies will have to identify among the responses above those that are misidentified as SNAP participants because of a similar name, inaccurate reporting etc. FNS anticipates that each of the 53 State SNAP agencies will receive approximately 5 total annual records with misidentified participants for a total annual response of 265 records. It will take approximately 0.667 hours to identify these types of misidentifications for a total annual burden of 176.76 burden hours. Additionally, each of the 53 State SNAP agencies will have to follow-up with and disqualify SNAP participants discovered through the above matches to have actual substantial lottery or gambling winnings. FNS anticipates approximately 30 records annually per State SNAP agency will be households with actual substantial winnings and it will take approximately 1 hour of the State SNAP agency's time for this activity for a total of approximately 1590 annual burden hours.

Lottery or gambling winners who lose eligibility for SNAP will need to be re-evaluated according to normal program rules if they again decide to apply for SNAP benefits. In order to identify applicants who were previously disqualified due to substantial winnings, eligibility workers may conduct a routine search of past enrollment files at the time of application. In most cases, eligibility workers are already doing this search to identify other relevant information for the current household application, and as a result the cost is negligible.

There is no recordkeeping burden required for this information collection request.

The estimate of respondent cost is based on the burden estimates and utilizes the Department of Labor, Bureau of Labor Statistic, May 2015 National Occupational and Wage Statistics, Occupational Groups (11-1021), (11-9071), (43-4061), (43-4199), and (43-3041).

The total annual cost to respondents is $7,978,541.80. This includes $3,669,529.20 for Business and $4,309,012.60 for State Agencies. It is estimated that State SNAP agency mangers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 67,840 hours to establish cooperative agreements with State public agency and private business gaming entities at a rate of $45.64 per hour for a total estimated cost of $3,096,217.60 for all respondents in the first year.

It is estimated that State public agency gaming entity managers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 16,960 hours to establish cooperative agreements with State SNAP agencies at a rate of $45.64 per hour for a total estimated cost of $774,054.40 for all respondents in the first year.

It is estimated that State SNAP agency mangers in the General and Operations Managers for Local Government occupation group (11-1021) in the 53 State SNAP agencies will spend a total of 8480 hours to establish data matching systems with State public agency and private business gaming entities at a rate of $45.64 per hour for a total estimated cost of $387,027.20 for all respondents in the first year.

It is estimated that State SNAP agency eligibility workers in the Eligibility, Interviews, Government Programs occupation group (43-4061) in the 53 State SNAP agencies will spend a total of 176.76 hours to review matches for misidentified winners at a rate of $20.41 per hour for a total estimated cost of $3,607.57 for all respondents annually.

It is estimated that State SNAP agency eligibility workers in the Eligibility, Interviews, Government Programs occupation group (43-4061) in the 53 State SNAP agencies will spend a total of 1590 hours to follow-up with and disqualify correctly matched winners at a rate of $20.41 per hour for a total estimated cost of $32,451.90 for all respondents annually.

It is estimated that State public agency gaming entity staff in the Information and Record Clerks, All Other occupation group (43-4199) in the 53 State public agency gaming entities will spend a total of 848 hours to enter appropriate information into the data matching system with the State SNAP agency at a rate of $18.46 per hour for a total estimated cost of $15,654.08 for all respondents annually.

It is estimated that private gaming entity managers in the General and Operations Managers, Management in Companies and Enterprises occupation group (11-1021) in the 159 private business gaming entities will spend a total of 50,880 hours to establish cooperative agreements with State SNAP agencies at a rate of $71.79 per hour for a total estimated cost of $3,652,675.20 for all respondents in the first year.

It is estimated that private business gaming entity staff in the Gaming Cage Workers occupation group (43-3041) in the 159 private business gaming entities will spend a total of 1272 hours to enter appropriate information into the data matching system with the State SNAP agency at a rate of $13.25 per hour for a total estimated cost of $16,854 for all respondents annually.

The Department is committed to complying with the E-Government Act of 2002, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in the preamble, 7 CFR parts 271, 272 and 273 are proposed to be amended as follows:

The addition to read as follows:

The revisions and additions to read as follows:

The revisions and additions to read as follows:

The revisions to read as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9430; Directorate Identifier 2016-NM-051-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0070, dated April 11, 2016; corrected April 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition for certain ATR-GIE Avions de Transport Régional Model ATR42-500 and Model ATR72 -102, -202, -212, and -212A airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9430.

ATR has issued Service Bulletin ATR42-33-0050, Revision 01, dated January 26, 2016; and ATR Service Bulletin ATR72-33-1043, Revision 01, dated January 26, 2016. This service information describes procedures for inspecting an EPSU to determine the part number, serial number, and amendment level, and replacing the EPSU. These documents are distinct since they apply to different airplane models.

Cobham has issued COBHAM Service Bulletin 301-3100-33-002, Revision 3, dated July 30, 2015, which describes procedures for modifying an EPSU by replacing the printed circuit board.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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 proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We estimate that this proposed AD affects 11 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that might need these replacements:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation:

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);

3. Will not affect intrastate aviation in Alaska; and

4. 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.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0363; Directorate Identifier 2014-NE-08-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

On August 20, 2015, we issued AD 2015-17-19, Amendment 39-18252 (80 FR 55232, September 15, 2015), (“AD 2015-17-19”) for RR RB211 Trent 768-60, 772-60, and 772B-60 turbofan engines. AD 2015-17-19 requires inspection of the fan case LP fuel tubes and associated clips and the FOHE mounts and associated hardware. AD 2015-17-19 resulted from fuel leaks caused by damage to the fan case LP fuel tube. We issued AD 2015-17-19 to prevent failure of the fan case LP fuel tube, which could lead to an in-flight shutdown, loss of thrust control, and damage to the airplane.

Since we issued AD 2015-17-19, fractures on the LP fuel return tube at mid-span locations were found with resulting fuel leaks. Also since we issued AD 2015-17-19, the European Aviation Safety Agency (EASA) has issued AD 2016-0120, dated June 17, 2016, which supersedes EASA AD 2014-0243, Revision 1, dated December 10, 2014 and Correction, dated March 23, 2015.

RR has issued Alert Non-Modification Service Bulletin (NMSB) RB.211-73-AH522, Revision 4, dated January 18, 2016; Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015; and Alert Service Bulletin (ASB) RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016. Alert NMSB RB.211-73-AH522, Revision 4, dated January 18, 2016 describes procedures for inspecting and, if necessary, replacing worn rubber sections of the P-clip. Alert NMSB RB.211-73-AH837, Revision 1, dated November 6, 2015 describes procedures for inspecting and, if necessary, replacing the P-clip attaching bracket, supporting hardware, and low-pressure (LP) fuel tube.Alert SB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016 describes procedures for modification of the routing of fuel, oil, and hydraulic tube assemblies. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

RR has issued SB RB.211-73-F343, Revision 4, dated May 26, 2011. The service information describes procedures for replacing the fuel tube assemblies and supporting hardware.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs.

This proposed AD would retain the requirements of AD 2015-17-19, (80 FR 55232, September 15, 2015), except it would require a modification, which terminates the repetitive inspections. This proposed AD would add a mandatory terminating action to the repetitive inspections by incorporating ASB RB.211-73-AJ366, Initial Issue and Supplement, dated May 3, 2016.

We estimate that this proposed AD affects 108 engines installed on airplanes of U.S. registry. We also estimate that it would take about 6 hours per engine to perform the inspections in this proposed AD. The average labor rate is $85 per hour. We also estimate that 54 of the engines will fail the inspections required by this AD. Replacement parts cost about $4,031 per engine.

We also estimate that it would take about 50 hours per engine to modify each engine. The modification would cost about $150,000 per engine. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $16,931,754.

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.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

(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),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) 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.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify three air traffic service route structures in the eastern United States to maintain the efficient flow of air traffic.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2016-9178 and Airspace Docket No. 16-ASO-12) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2016-9178 and Airspace Docket No. 16-ASO-12.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA, 30337.

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016 and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this proposed rule. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-16, V-94 and V-124, due to the planned decommissioning of the Jacks Creek, TN, VOR/DME. The proposed route changes are described below.

V-16: V-16 extends between Los Angeles, CA, and Boston, MA. The FAA proposes to modify that portion of the route that reads “. . . Marvell, AR; Holly Springs, MS; Jacks Creek, TN; Shelbyville, TN . . . .” To read as follows: “. . . Marvell, AR; to Holly Springs, MS. From Shelbyville, TN; . . . .” thus eliminating Jacks Creek, TN, from the route.

V-94: V-94 extends between Blythe, CA and Bowling Green, KY. The FAA proposes to terminate the route at Holly Springs, MS, thus eliminating the segments of the route from Holly Springs, MS, through Jacks Creek, TN, to Bowling Green, KY.

V-124: V-124 extends between Bonham, TX and Graham, TN. The FAA proposes to terminate the route at Gilmore, AR, thus eliminating the segments from Gilmore, AR, through Jacks Creek, TN, to Graham, TN.

Domestic VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11A, dated August 3, 2016 and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

I. Background

When Congress enacted the Copyright Act of 1976, it authorized the Register of Copyrights (the “Register”) to issue regulations specifying the administrative classes of works for the purpose of seeking a registration, and the nature of the deposit required for each such class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” See 17 U.S.C. 408(c)(1). Pursuant to this authority, the Register issued regulations permitting the U.S. Copyright Office (the “Office”) to issue group registrations for certain limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5)-(10).

Without prejudice to the Register's general authority to create group registration options under section 408(c)(1) of the Copyright Act at the Register's discretion, Congress also specifically directed the Register, under section 408(c)(2), to issue regulations allowing works by the same individual author to be registered as a group, if those works were first published within a twelve-month period as contributions to periodicals (including newspapers).1 17 U.S.C. 408(c)(2). In particular, section 408(c)(2) states that “the Register of Copyrights shall establish regulations specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period, on the basis of a single deposit, application, and registration fee, under the following conditions—(A) if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published; and (B) if the application identifies each work separately, including the periodical containing it and its date of first publication.” Id.

As the legislative history explains, allowing “a number of related works to be registered together as a group represent[ed] a needed and important liberalization of the law.” H.R. Rep. No. 94-1476, at 154 (1976); S. Rep. No. 94-473, at 136 (1975). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection. Id. If copyright owners do not submit their works for registration under this permissive system, the public record will not contain any information concerning those works. This creates a void in the public record that diminishes the value of the Office's database. At the same time, when large numbers of works are bundled together in one application, information about the individual works may not be adequately captured. Therefore, group registration options require careful balancing of the need for an accurate public record and the need for an efficient method of facilitating the registration of such works.

In 1978, the Office issued an interim rule that established a procedure for registering groups of contributions to periodicals. See 43 FR 965 (Jan. 5, 1978). This interim rule is largely still in effect today, with the exception of one amendment discussed below. See 37 CFR 202.3(b)(8). The Office refers to this procedure as a “group registration for contributions to periodicals” or “GRCP.” Applicants may use this option if they satisfy the requirements set forth in the regulation. First, all the contributions must be created by the same individual, and none of them can be a work made for hire. Id. § 202.3(b)(8)(i)(A), (B). Second, all the works must be first published as a contribution to a periodical, and they must be published within a twelve-month period (e.g., October 1, 2014 through September 30, 2015). In other words, the contributions do not have to be published during the same calendar year, but “the earliest and latest contributions must not have been first published more than twelve months apart.” Id. § 202.3(b)(8)(i)(C) n.2. And, third, if the contributions were first published before March 1, 1989, each contribution must contain an appropriate copyright notice. Id. § 202.3(b)(8)(i)(D).

The current regulation states that the applicant must complete and submit a paper application using Form TX, Form VA, or Form PA. It also states that the application “should be filed in the [administrative] class appropriate to the nature of authorship in the majority of the contributions.” 2 Id. 202.3(b)(8)(ii)(A) & n.3. For instance, Form TX should be used if the group primarily contains textual material (such as articles, editorials, essays, etc.), Form VA should be used if the group primarily contains visual material (such as photographs, cartoons, illustrations, etc.), and Form PA should be used if the group primarily contains works of the performing arts (such as music, sound recordings, dramas, etc.). In addition, the applicant must complete and submit an “adjunct form” known as Form GR/CP, which is specifically designed for providing information about the particular group of contributions that is being registered. Id. § 202.3(b)(8)(ii)(B).

In all cases, the application must “contain the information required by the form and its accompanying instructions.” Id. § 202.3(b)(8)(ii)(A), (B). The instructions for Form GR/CP state that the application must identify “each contribution separately, including the periodical containing it and its date of first publication.” 3 Form GR/CP (http://copyright.gov/forms/formgr_tx.pdf). Specifically, applicants are instructed to provide the title of each contribution that is included in the group, the title of the periodical where each contribution was first published, the volume and issue number (if any) and issue date for each periodical, and the page number where each contribution appeared. The instructions for Form GR/CP also state that the applicant must satisfy one other requirement: The copyright claimant for each contribution must be the same person or organization. This requirement does not appear in the current regulation, although it has appeared in the instructions for Form GR/CP since at least July 2012.

Under the current regulations there is no limit on the number of contributions that may be registered with the GRCP option. The current regulations also provide that the applicant must submit the contributions in the precise form in which they were first published, and the copies must be submitted in a physical—rather than a digital—form.

When the Office established the group option for contributions to periodicals, the regulation stated that the applicant must submit “one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published.” See 43 FR at 967. The Federal Register notice announcing this rule explained that the deposit requirements for this group option “essentially follow the conditions set forth in [section 408(c)(2) of] the statute.” Id. at 966. This imposed a hardship on applicants who did not have a copy of the entire issue or the entire section where the contribution was first published. To address this concern, the Office began granting special relief from the deposit requirements on a case-by-case basis and allowed applicants to submit their works in other formats. See 67 FR 10329 (Mar. 7, 2002).

Based on this experience, the Office amended the regulation in 2002 to allow applicants to submit their contributions in any of the following physical formats: (i) One copy of the entire issue of the periodical that contains the contribution; (ii) one copy of the entire section of a newspaper that contains the contribution; (iii) tear sheets or proof copies of the contribution; (iv) a photocopy of the contribution; (v) a photocopy of the entire page from the periodical that contains the contribution; (vi) the entire page from the periodical that contains the contribution, either cut or torn from the periodical; (vii) the contribution cut or torn from the periodical; (viii) photographs or photographic slides of the contribution, provided that the content of the contribution is clear and legible; or (ix) photographs or photographic slides of the entire page from the periodical that contains the contribution, provided that the content of the contribution is clear and legible. See 37 CFR 202.3(b)(8)(i)(E); 67 FR at 10329. The Office explained that expanding the list of acceptable formats would be “broadly consistent” “with the spirit of administrative flexibility Congress indicated the Register had in order to ensure that the deposit requirement was reasonable and non-burdensome for the applicant.” 67 FR at 10329 (citing H.R. Rep. No. 94-1476, at 150-55 (1976)). It also explained that this would not diminish the quality of the public record, because applicants were expected to provide bibliographic information on Form GR/CP, which could be used to identify the periodicals where the contributions were first published (even if the applicant did not submit a copy of the actual publications). See id.

The Office is proposing to amend the regulation that governs the group registration option for contributions to periodicals (the “Proposed Rule”). As explained in greater detail below, the Proposed Rule will make several notable changes to the Office's GRCP regulation. First, it will improve the efficiency of the GRCP option by requiring applicants to register their contributions through the Office's electronic registration system (instead of submitting a paper application). Second, it will modify the eligibility criteria for the GRCP option by providing a more specific definition of the term “periodical,” and by specifically requiring the contributions to be owned by the same copyright claimant. Third, it will require applicants to register their contributions either in Class TX or Class VA (but not Class PA), and to identify the date of publication for each contribution and the periodical where each contribution was first published. Fourth, it will modify the deposit requirements for this option by requiring applicants to submit a digital copy of each contribution and to upload these copies through the electronic registration system (instead of submitting a physical copy of each contribution).

The Proposed Rule also memorializes the Office's longstanding position regarding the scope of a registration for a group of contributions to periodicals. It also confirms that the Office may refuse to issue a group registration or may cancel a group registration if it determines that a party failed to comply with the requirements for that option.4

Each of these proposals is discussed below.

Once this rule is finalized, it will be possible to register groups of contributions to periodicals through the Office's electronic registration system. The Office generally has allowed and encouraged applicants to register their works through this system since 2007. When the system was introduced, applicants could submit their works on an individual basis or as part of a collective work or an unpublished collection. See 72 FR 36883, 36884-85 (July 6, 2007). However, applicants could not submit a group registration covering contributions to periodicals, because the system was not designed to take in the information that is required for such a registration. Instead, applicants were required to file their claims with a paper application submitted on Form TX, Form VA, or Form PA, together with Form GR/CP.

In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record. See U.S. Copyright Office, Office of the Chief Information Officer, Report and Recommendations of the Technical Upgrades Special Project Team (February 2015), available at http://copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf; see also 78 FR 17722 (Mar. 22, 2013). In December 2015 the Register issued a strategic plan that sets forth the Office's performance objectives for the next five years. It provides a roadmap for re-envisioning almost all of the services that the Office provides, including how applicants register claims, submit deposits, record documents, share data, and access expert resources. With respect to information technology, the plan calls for “a robust and flexible technology enterprise that is dedicated to the current and future needs of a modern copyright agency.” U.S. Copyright Office, Strategic Plan 2016-2020: Positioning the United States Copyright Office for the Future, at 35 (Dec. 1, 2014) (“Strategic Plan 2016-2020”), available at http://copyright.gov/reports/strategic-plan/USCO-strategic.pdf. At the direction of Congress,5 the Office also developed a detailed IT plan, and obtained public comments on specific strategies, costs, and timelines for technology objectives. U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://www.copyright.gov/reports/itplan/technology-report.pdf.

In the meantime, the Office has made some enhancements to the current system to benefit authors, the Office, and the public at large. Under the Proposed Rule, applicants will be required to use an online application specifically designed for GRCP as a condition for using this group option. Once the Proposed Rule goes into effect, the Office will no longer accept groups of contributions that are submitted with a paper application on Form TX, Form VA, Form PA, or Form GR/CP. In such cases the Office will ask the applicant to resubmit the claim using the online application, which may change the effective date of registration that is assigned to the claim. The Office invites comment on this proposal, including whether the Office should eliminate the paper applications for GRCP, phase them out after a specified period of time, or continue to offer them for applicants who prefer to use the paper-based system.

When completing the online application, applicants will be asked to provide the same information that is currently requested in Form TX, Form VA, and Form GR/CP. Consistent with Section 408(c)(2) of the statute, applicants will be required to provide the title and date of first publication for each contribution in the group, as well as the title of the periodical where each contribution was first published. If an applicant fails to provide this information, the application will not be accepted by the electronic system. In addition, applicants will be given an opportunity to provide the International Standard Serial Number (“ISSN”) that has been assigned to the periodical (if any), as well as the volume, number, issue date, and relevant page numbers (if any) for the particular issue where the contribution was first published. If the contributions were published as part of a continuing series of works by the same author, such as an advice column, an editorial column, a cartoon strip, or the like, the applicant will be given an opportunity to provide the title (if any) that may be used to identify the entire series of works.

The current regulation states that an applicant may register a group of contributions to periodicals in Class TX, VA, or PA by submitting the appropriate application for that class. 37 CFR 202.3(b)(8)(ii)(A) & n.3. The Proposed Rule, however, will allow applicants to register their claims only in Class TX or Class VA, and will eliminate the provision that allows a group of contributions to be registered in Class PA. The Office routinely registers contributions to periodicals in Class TX and Class VA, but has no institutional memory of having ever registered a claim in Class PA. Presumably, this is due to the fact that it would be extremely unusual for a musical work, a dramatic work, a choreographic work, a pantomime, a motion picture, or an audiovisual work to be first published as a contribution to a periodical.

The Proposed Rule states that applicants should register their claims in Class TX if a majority of the contributions predominantly consist of text, and should register their claims in Class VA if a majority of the contributions predominantly consist of photographs, illustrations, artwork, or other visual material. A similar provision appears in the current regulation; the Proposed Rule simply reiterates this requirement.

As discussed above, the current regulation also contains a limited exception to this rule, which is set forth in footnote 3 to the regulation. See 37 CFR 202.3(b)(8)(ii)(A) n.3. The Proposed Rule will eliminate this footnote, because it is obsolete.

When Congress enacted the Copyright Act of 1976 it contained a provision known as the “manufacturing clause,” which was set forth in Section 601 of the statute. Briefly stated, that provision prohibited the importation or distribution “of copies of a work consisting preponderantly of nondramatic literary material that is in the English language,” unless that material was “manufactured in the United States or Canada.” 17 U.S.C. 601 (1978) (repealed by Pub. L. 111-295, 4(a), 124 Stat. 3180 (2010)). Footnote 3 to the regulation that governs GRCP contains similar language. It states that “if any of the contributions consists preponderantly of nondramatic literary material that is in the English language, the basic application for the entire group should be submitted on Form TX.” 37 CFR 202.3(b)(8)(ii)(A) n.3. The reason for this limitation is that when the Office adopted the regulation in 1978, Form TX contained a space that asked the applicant to identify the country where the copies were printed. The Office used this information to determine whether the work was subject to the manufacturing clause. (The Office did not include this space on Form VA or Form PA, because as mentioned above, the manufacturing clause only applied to nondramatic literary works.)

The manufacturing clause expired in 1986, Congress removed that provision from the statute in 2010, and as a result, the Office no longer asks for “country of origin” information on Form TX. Public Law 97-215, 96 Stat. 178, 178-79 (1982); Public Law 111-295, 4(a), 124 Stat. 3180, 3180 (2010). Thus, footnote 3 to the current regulation no longer serves any purpose.

A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration,” including a registration for a group of related works. 17 U.S.C. 408(d). Specifically, it identifies an error or omission in an existing registration (referred to herein as a “basic registration”) and places the corrected information or additional information in the public record. The Office often refers to this type of registration as a “CA,” which stands for “correction and amplification.”

The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the “CA Rulemaking”) that will modify the regulation that governs this procedure. Under the rule proposed in the CA Rulemaking, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration for any work that is capable of being registered through the electronic system, rather than filing a paper application. This online-filing requirement will apply to supplementary registrations for groups of contributions to periodicals—even if those contributions were originally registered with a paper application submitted on Forms TX, VA, and GR/CP. When the rule proposed in the CA Rulemaking goes into effect, applicants will be required to file an online application in order to correct or amplify a basic registration for a GRCP claim. If an applicant attempts to use a paper application, the Office will ask the applicant to resubmit the claim using the online form.

The Office is inviting comment on this proposal, including whether the Office should eliminate the paper application for seeking a supplementary registration, phase out this option after a specified period of time, or continue to offer this option for applicants who prefer to use the paper-based system. Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on GRCP.

A substantial majority of the U.S. population has access to the internet,6 and therefore, the Office expects that most authors will be able to use the electronic system.7 That said, the Office recognizes that millions of Americans do not have broadband service, and recognizes that eliminating the paper application may impose a burden on authors who fall within that segment of the population.8 Nevertheless, the Office believes that the benefits of requiring applicants to use the online application outweigh the potential burden on authors who do not have direct access to the internet.

Providing title and publication information with a paper application can be tedious and time consuming, especially when applicants submit dozens or even hundreds of contributions in a group registration. Examining these types of claims also imposes substantial burdens on the Office, because the cataloging information for each contribution must be copied from the application and typed into the Office's electronic system by hand. In some cases, examiners have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration. Moreover, the increasing demand on the Office's limited resources has had an adverse effect on the examination of other types of works within the Literary and Visual Arts Divisions.

If an author does not have broadband at home, at the home of a relative, a friend, or a neighbor, or at her place of employment, there are other options for registering a group of contributions to periodicals. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.9 She could log into the electronic system at a public library or other institution that provides computers with Internet access. Alternatively, the author could hire an attorney to submit the application on her behalf, either by paying for the attorney's services or by obtaining pro bono representation.10 The Office also notes that a number of companies will prepare an application and file it with the Office for a fee. These companies typically provide this service for authors who wish to register a single work, but they could conceivably expand their offering to include groups of contributions to periodicals.

Congress gave the Office broad authority to establish the requirements for group registration options. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a registration for a group of contributions to periodicals is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule.

This section discusses the eligibility requirements for the group option for contributions to periodicals. Applicants that fail to satisfy these requirements will not be permitted to use this option.

The Proposed Rule improves the readability of the regulation by restating the eligibility requirements for this group option, including the requirements involving authorship, work made for hire, first publication, and notice. The changes in language are simply intended to clarify these requirements and do not represent a substantive change in policy.

The Proposed Rule provides a definition for the term “periodicals.” It states that a periodical is a collective work that is issued or intended to be issued on an established schedule in successive issues that are intended to be continued indefinitely. It recognizes that each issue of a periodical usually bears the same title, as well as numerical or chronological designations. It also provides examples of works that typically qualify as a periodical, such as newspapers, magazines, newsletters, journals, bulletins, annuals, the proceedings of societies, and other similar works. This definition has appeared in the Compendium of U.S. Copyright Office Practices since December 22, 2014, and is consistent with the Office's longstanding definition for the term “serial,” which has been in effect since 1991. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, section 1115.1 (3d ed. 2014) (hereinafter the “Compendium”); 37 CFR 202.3(b)(1)(v); 56 FR 7812, 7813 (Feb. 26, 1991).

An applicant may be permitted to register articles, blog entries, artwork, photographs, or other contributions that were first published in an electronically printed (“ePrint”) publication if that publication fits within the regulatory definition of a “periodical.” Specifically, an ePrint publication may be considered a periodical for purposes of registration if it is fixed and distributed online or via email as a self-contained work, such as a digital version of a tangible newspaper, magazine, newsletter, or similar publication. For example, many companies publish electronic newsletters that contain articles on a particular subject, and distribute these publications to their subscribers either online or via email. An article published in an ePrint newsletter could be considered a contribution to a periodical under the Proposed Rule if each issue of the newsletter is fixed and distributed as a self-contained work and if the content of each issue does not change once it has been distributed.

By contrast, a Web site would not be considered a periodical under the Proposed Rule. Web sites are typically updated on a continual basis rather than an established schedule. The updates are not made in successive issues that can be recognized as discrete, self-contained collective works, and they do not contain numerical or chronological designations that distinguish one update from the next. For these reasons, an applicant could register a group of articles that were first published in the print or ePrint edition of a magazine. Likewise, an applicant could register a group of articles that were first published in a print or ePrint edition of a magazine and simultaneously published on the publisher's Web site. However, an applicant could not register a group of articles that were published solely on a Web site.

The Office is aware of the need for establishing new and updated practices for examining and registering complex or emerging areas of authorship. The Register's strategic plan calls for the Office to “[a]ssess special issues relating to registration and deposit protocols for emerging forms of digital dissemination of works across the spectrum of creative industries,” and to “[i]dentify and make appropriate changes to Office policy and procedures in response to . . . emerging business standards.” Strategic Plan 2016-2020 at 11. The rule proposed in this notice represents an interim improvement to the current electronic registration system, and is intended to provide a sound foundation for creating other registration options within the next five years.

The Proposed Rule confirms that the application must identify each contribution that is included in the group, including the date of publication for each contribution and the periodical in which it was first published. Although the statute expressly states that this requirement should be included in the regulation, it does not appear in the current rule. 17 U.S.C. 408(c)(2)(B). Instead, the regulation states that the application “shall contain the information required by the form and its accompanying instructions,” and in turn, the instructions for Form GR/CP state that this information should be included in the form. 37 CFR 202.3(b)(8)(ii)(A); see also United States Copyright Office, Adjunct Application Form GR/CP, available at http://copyright.gov/forms/formgr_tx.pdf. The Proposed Rule reconciles the regulation with the statute and the Office's current practices.

The Proposed Rule confirms that the copyright claimant for each contribution in the group must be the same person or organization. This is in addition to the requirement that the contributions must be created by the same individual, although the author and claimant may be different persons. As noted in Section II, this requirement has appeared in the instructions for Form GR/CP for some time, but it does not appear in the current regulation. The change is simply intended to reconcile the regulation with the Office's longstanding practices. The Office will continue to register contributions authored by an individual who transferred his or her copyrights to the copyright claimant, provided that the claimant owns all of the exclusive rights in those contributions and provided that the application contains an appropriate transfer statement explaining how the claimant obtained those rights.

The statute directs the Office to establish a procedure for registering a group of works by the same individual, but it does not specify the total number of works that may be included within each group. Although the statute requires the Register to establish a group registration procedure for contributions to periodicals that are “all first published as contributions to periodicals, within a twelve-month period,” 17 U.S.C. 408(c)(2) (emphasis added), that is not the same thing as saying that an author should be permitted to register “all” such contributions with one application and one filing fee. If that is what Congress intended, then presumably it would have directed the Register to establish a procedure for registering “all” works by the same individual author (rather than “a group of works”). Id.

Although the Office thus has the authority to limit the number of contributions that may be included within each group, it has decided not to impose any limits at this time. Once the Proposed Rule has been implemented, the Office will monitor these group registrations to determine if any restrictions may be warranted in the future.

In the meantime, the Office encourages authors to submit their contributions on a quarterly basis (i.e., every three months), instead of submitting them on an annual or semi-annual basis. As with any work of authorship, a contribution to a periodical must be registered in a timely manner to seek statutory damages and attorney's fees in an infringement action. Specifically, an author may seek statutory damages and attorney's fees if the contribution was registered (i) before the infringement commenced or (ii) within three months after the first publication of that work. 17 U.S.C. 412. To secure these benefits, the Office encourages authors to register their contributions within three months after they were published. By doing so, authors will preserve their ability to seek statutory damages and attorney's fees for any infringements that may occur after the effective date of registration, as well as any infringements that may occur within three months after the publication of each work. For example, if the first contribution in the group was published on June 1, 2016 and the last contribution was published on September 1, 2016, it would be advisable to file a complete application, deposit, and filing fee on or before September 1, 2016. By doing so, the author will preserve his or her ability to seek statutory damages and attorney's fees for any infringements that began after the effective date of registration (i.e., after September 1, 2016), as well as any infringements that began within three months after the date of publication for each contribution in the group.

To register a group of contributions to periodicals under the Proposed Rule applicants must submit a complete copy of each contribution that is included in the group. This will ensure that the Office receives the entire content of each contribution for the purpose of examining, indexing, and documenting the claim.

Applicants may satisfy this requirement by submitting one copy of the entire issue of the periodical in which the contribution was first published. If the contribution was first published in a newspaper, applicants may satisfy this requirement by submitting one copy of the entire section of the newspaper in which the contribution was first published. Both of these options appear in the existing rule and are required to be included by statute. 17 U.S.C. 408(c)(2)(A); 37 CFR 202.3(b)(8)(i)(E).

Alternatively, applicants may satisfy this requirement by submitting one copy of each contribution in the precise form in which it was first published in the periodical. Specifically, applicants may submit a copy of the particular pages within the periodical where the contribution was first published. This provision essentially mirrors regulations that have been in place since 2002 and, as discussed, is necessary to ensure that authors can readily take advantage of the GRCP option. See generally 67 FR 10329.

The Register may, consistently with the statutory scheme, accept deposits other than “one copy of the entire issue of the periodical” and “the entire section in the case of a newspaper” for the GRCP option. 17 U.S.C. 408(c)(2)(A). As mentioned above, section 408(c) gives the Register broad authority to establish group registration options, and to define the nature of the deposit materials for such registrations. See 17 U.S.C. 408(c)(1) (“The Register of Copyrights is authorized to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified. The regulations may require or permit . . . a single registration for a group of related works.”). Section 408(c)(2), in turn, requires the Register to establish a particular group registration option with the following conditions: “specifically permitting a single registration for a group of works by the same individual author, all first published as contributions to periodicals, including newspapers, within a twelve-month period . . . if the deposit consists of one copy of the entire issue of the periodical, or of the entire section in the case of a newspaper, in which each contribution was first published.” 11 17 U.S.C. 408(c)(2)(A). The Proposed Rule provides that option. Section 408(c)(2) does not, however, limit the Register's ability to expand the circumstances where group registration of contributions to periodicals would be accepted. Nor does it limit her ability to provide authors of such contributions with additional accommodations to facilitate their use of this group registration option. To the contrary, section 408(c)(2) makes clear that its terms are “[w]ithout prejudice to the general authority provided under” section 408(c)(1) to create group registration options and define the deposit requirements for those options. Id. 408(c)(2). Indeed, to read section 408(c)(2) as limiting the Register's authority in this regard would be contrary to the overall purpose of the statutory scheme, which was to reduce “administrative problems” and “unnecessary burdens and expenses on authors and other copyright owners” by permitting group registration. H.R. Rep. No. 94-1476, at 154 (1976). Thus, as an exercise of the Register's general authority in section 408(c)(1), the Office has determined that it may accept formats other than those specifically listed in section 408(c)(2)(A) as deposits for the GRCP option.

In all cases applicants will be required to submit a digital copy of each contribution that is included in a group. Specifically, applicants will be required to submit electronic files in Portable Document Format (“PDF”) or other electronic format specifically approved by the Office. This requirement will apply regardless of whether an applicant submits a copy of an entire issue of a periodical, an entire section of a newspaper, or the specific pages from the periodicals where the contributions were first published.

Applicants will be required to upload the digital copies through the electronic registration system. When uploading the files, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file may not exceed 500 megabytes, although applicants may digitally compress the contributions to comply with this limitation.

Under the current regulation, applicants must submit a physical copy of each contribution, such as photographic prints, contact sheets, or slides; camera-ready proof copies; or pages or clippings cut or torn from a newspaper, magazine, or other publication. Under the Proposed Rule, the Office will no longer accept physical copies. Likewise, the Office will not accept digital copies that have been saved onto a disc, a flash drive, or other physical storage device that is delivered to the Office by mail, by courier, or by hand delivery. In all cases, applicants will be required to upload a digital copy of each contribution via the electronic registration system.

Requiring applicants to upload their digital copies to this system will increase the efficiency of the group registration process. Based on the Office's experience, electronic submissions take less time to process, they are easier to track, and they are less burdensome to store than physical copies. From the applicant's perspective, electronic submissions should be more convenient and less expensive than submitting digital copies on a physical storage device, and if the claim is approved, the applicant should receive a certificate of registration in a more timely manner.

Moving to electronic deposits may also provide copyright owners with certain legal benefits. When the Office registers a group of contributions to periodicals it assigns an effective date of registration to the claim. This determination is based on the date that the Office received the application, the filing fee, and the deposit. When an applicant uploads a digital copy to the electronic system, the Office typically receives the application, the filing fee, and the deposit on the same date. By contrast, when an applicant delivers a physical copy to the Office by mail, courier, or hand delivery, the deposit may not be received for days or even weeks after the date that the application and filing fee were submitted.

Requiring applicants to submit a scanned copy of their contributions in the precise form in which they were first published is consistent with the legislative history, which states that “[a]s a general rule the deposit of more than a tear sheet or similar fraction of a collective work is needed to identify the contribution properly and to show the form in which it was published.” H.R. Rep. No. 94-1476, at 153 (1976). It also serves an evidentiary purpose. It gives the examiner an opportunity to compare the deposit with the title, date of publication, issue number, page number, or other information that is set forth in the application (although in practice examiners do not conduct this type of analysis for every contribution in the group). If a particular contribution becomes involved in litigation, the deposit could be used to verify that the contribution was published in a particular periodical on a particular date.

Applicants who are unable to submit their contributions in the precise form in which they were first published may request special relief from the deposit requirements. 37 CFR 202.20(d). Likewise, applicants may request special relief if they are unable to submit a digital copy of their contributions or unable to upload them through the electronic system. For information concerning special relief, see section 1508.8 of the Compendium.

Under the Proposed Rule, the applicant will be required to pay the same filing fee that is currently set forth in the Office's fee schedule, namely $85 per claim.

In 2012 the Office conducted a study pursuant to Section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides to the public. After reviewing its costs, the Office decided to increase the filing fee for GRCP from $65 to $85, noting that these types of claims are “labor-intensive.” 12 U.S. Copyright Office, Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On Or About April 1, 2014, at 17 (Nov. 14, 2013).

Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit the proposed fee schedule to Congress, and that the Office may implement the schedule 120 days thereafter unless Congress enacts a law stating that it does not approve the schedule. 17 U.S.C. 708(b)(5).

Once the Proposed Rule has been implemented, the Office will monitor the cost of processing GRCP claims to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study.

The Proposed Rule memorializes the Office's longstanding position regarding the scope of a registration for a group of contributions to periodicals.

When the Office issues a group registration it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of contributions to periodicals covers each contribution in the group, and each contribution is registered as a separate “work.” This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was “a needed and important liberalization of the law [then] in effect,” which to that point had required “separate registrations where related works or parts of a work are published separately.” H.R. Rep. No. 94-1476, at 154 (1976). In particular, Congress noted that “the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.” Id. Given that context, it would be anomalous for works registered as part of a group registration application to be given lesser protection than if they had been registered through separate applications.

For similar reasons, the Proposed Rule also clarifies that when a group of works are registered under GRCP, the group as a whole is not considered a compilation or a collective work. Instead, the group is merely an administrative classification created solely for the purpose of registering multiple contributions with one application and one filing fee. See 17 U.S.C. 408(c)(1) (“Th[e] administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.”). Although an applicant may exercise some judgment in selecting the contributions that are included within a particular group, that decision does not necessarily constitute copyrightable authorship. The selection is based on the regulatory requirements for GRCP, and any coordination or arrangement of the contributions is merely an administrative formality that facilitates the examination of the works.

Likewise, the Proposed Rule clarifies that the group is not considered a derivative work. When a group of contributions are combined together for the purpose of facilitating registration those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply following the administrative requirements for GRCP. 17 U.S.C. 101 (definition of “derivative work”).

The Proposed Rule confirms that the Office may refuse to issue a group registration if it determines that the applicant failed to satisfy the requirements set forth in the statute or regulations.13 17 U.S.C. 410(b) (stating that the Register “shall refuse registration and shall notify the applicant in writing of the reasons for such refusal” “[i]n any case in which [she] determines that . . . the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason”).

The Proposed Rule confirms that the Office may cancel a group registration under § 201.7(c)(4) of the regulations if it determines, after the registration has issued, that the requirements for that option were not met. In such cases, the Office will send a written notice to the correspondent and claimant named in the registration at the addresses specified in the registration record. The Office will describe the defect in the registration and will inform the parties that the registration may be cancelled if they fail to resolve the defect in a timely manner.

In a related vein, the Proposed Rule makes some clarifying edits to the Office's cancellation regulation, section 201.7(c)(4). First, it makes clear, consistent with existing Copyright Office practice, that the regulation only provides representative examples of situations where the Office may cancel a registration (rather than an exhaustive list of situations where cancellation may be warranted). Second, the Proposed Rule also removes one of the examples from that list—namely section 201.7(c)(4)(ix), which states that the Office may cancel a registration for a work published after January 1, 1978 if it determines that “the only claimant given on the application was deceased on the date the application was certified.” This is inconsistent with current practices of the Copyright Office.

The Office recently conducted a comprehensive review of its internal policies in conjunction with the revision of the Compendium. The Compendium explains that if the Office discovers that the named claimant died before the work was submitted or before it has been approved for registration, the Office may ask the applicant to provide the name of the current claimant. In such cases, the Office will accept an application filed by or on behalf of the person or organization that owns all of the exclusive rights that initially belonged to a deceased claimant, such as the claimant's estate, a devisee, or an heir. Likewise, the Office will accept an application that names a deceased author as the copyright claimant if that author is the only party who is eligible to be named as the claimant, as might be the case where no one owns all of the exclusive rights in the work because the author previously transferred those rights to multiple parties. See Compendium section 405.5.

The Proposed Rule will move the regulation that governs this group option from section 202.3(b)(8) to section 202.4(h).14 In the future, the Office intends to move all regulations governing the various group options that it has created under section 408(c) of the Copyright Act to section 202.4. This change is intended to improve the readability of the existing regulations, but it does not represent a substantive change in policy.

In addition, the Proposed Rule will incorporate the definitions of “Class TX,” “Class VA,” and “works of the visual arts” that are set forth in section 202.3, and it will confirm that the application may be submitted by any of the parties listed in section 202.3(c)(1), namely (i) the author or copyright claimant of those works, (ii) the owner of any of the exclusive rights in those works, or (iii) a duly authorized agent of any author, claimant, or owner of exclusive rights.

The Proposed Rule will allow broader participation in the registration system, and increase the efficiency of the group registration process. The Office invites public comment on these proposed changes.

For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows:

The addition to read as follows:

The revisions to read as follows:

The U.S. Copyright Office (the “Office”) is proposing to amend the regulation that governs the group registration option for published photographs. In addition, the Office is proposing to create a new group registration option for unpublished photographs. Finally, the Office is proposing to amend the deposit requirements for groups of published photographs and photographic databases, and is proposing to establish similar deposit requirements for the new group option for unpublished photographs. These proposals are discussed in more detail below. The Office invites public comment on each proposal.

Last year the Office issued a notice of inquiry concerning the practical and legal challenges faced by photographers, graphic artists, and illustrators (referred to herein as the “Visual Works Inquiry” 1 ). See 80 FR 23054 (Apr. 24, 2015). The Office recognized that photographers, graphic artists, and illustrators have a broad impact on U.S. culture, but they face significant challenges in the digital age. To better understand these challenges, the Office requested written comments on how photographs, graphic artworks, and illustrations are monetized, licensed, registered, and enforced under the Copyright Act of 1976 (“the Copyright Act”). The Office sought information concerning the current marketplace for these types of works, as well as observations regarding the real or potential obstacles that these creators and their licensees or other representatives face when navigating the digital landscape. With respect to registration, the Office asked the public to identify the most significant challenges for photographers and other visual artists. 80 FR at 23056.

The Office received 2,795 comments and 166 reply comments in response to the Visual Works Inquiry. The Office has not attempted to address these comments in this notice of proposed rulemaking.2 The rule proposed in this notice focuses solely on photographs, and it represents an interim improvement to the current electronic registration system. In the future, the Office may consider other options as it assesses the broader concerns of visual artists generally.

When Congress enacted the Copyright Act, it authorized the Register of Copyrights (the “Register”) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposit required for each such class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” See 17 U.S.C. 408(c)(1). Pursuant to this authority, the Register issued regulations permitting the Office to issue group registrations for certain limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5)-(10).

As the legislative history explains, allowing “a number of related works to be registered together as a group represent[ed] a needed and important liberalization of the law.” H.R. Rep. No. 94-1476, at 154 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975). Congress recognized that requiring applicants to submit separate applications for certain types of works may be so burdensome and expensive that authors and copyright owners may forgo registration altogether, since copyright registration is not a prerequisite to copyright protection. Id. If copyright owners do not submit their works for registration under this permissive system, the public record will not contain any information concerning those works. This creates a void in the record that diminishes the value of the Office's database.

Congress cited “a group of photographs by one photographer” as an example of a “group of related works” that would be suitable for registration under section 408(c)(1). Id. At the same time, when large numbers of works are bundled together in one application, information about the individual works may not be adequately captured. Therefore, group registration options require careful balancing of the need for an accurate public record and the need for an efficient method of facilitating the registration of multiple photographs.

Under the Copyright Office's existing regulations and registration practice, photographers have several options for registering groups or collections of photographs with one application and one filing fee. These options are summarized below.

After conducting an extensive rulemaking, the Office issued a regulation in 2001 that allows applicants to register a group of published photographs with one application and one filing fee. See 66 FR 37142, 37149-50 (July 17, 2001). The Office refers to this procedure as the “group option for published photographs” or “GRPPH.”

An applicant may register a group of photographs under this procedure if all the photographs were taken by the same photographer and were published within the same calendar year, and if the copyright claimant for all the photographs is the same person or organization. 37 CFR 202.3(b)(10)(i)-(iii). If the photographs were created as works made for hire, the application must provide both the name of the photographer and the name of the photographer's employer or the party who specially ordered or commissioned the photographs (e.g., “ABC Corporation, employer for hire of John Doe”). Id. § 202.3(b)(10)(ix).

As a general rule, the applicant must provide a precise date of publication for each photograph in the group (i.e., month, day, and year), either by providing the date on the application, on a continuation sheet submitted on Form GR/PPh/CON,3 on a separate list submitted on paper or in a text file, or on the photographs themselves (e.g., writing the date on the back of each print, including the date in the file name for each image, etc.). Id. § 202.3(b)(10)(iv)(A)-(D). Alternatively, the applicant may provide a range of dates (e.g., February 25, 2015 through May 25, 2015), but only if the photographs were published within three months before the date that the application is received in the Office. Id. § 202.3(b)(10)(vi). If the applicant chooses to provide publication information on Form GR/PPh/CON, the applicant may include up to 750 photographs in the claim. Id. § 202.3(b)(10)(v). By contrast, if the applicant provides publication information using any other method, there is no limit on the number of photographs that may be submitted. Id. § 202.3(b)(10)(v), (viii).

Initially, all applicants were required to file their claims using a paper application submitted on Form VA. As discussed below in Section III.A.1, the Office has established a pilot program that allows applicants to submit their claims through the electronic registration system. Id. § 202.3(b)(10)(xi).

In all cases, the applicant must submit one copy of each photograph that is included in the group, and all the photographs must be submitted in the same format. Id. § 202.3(b)(10)(x). The applicant may submit the photographs in digital form by saving them on a CD-ROM or DVD-ROM in a JPEG, GIF, TIFF, or PCD format.4 Alternatively, the applicant may submit the photographs in a physical form, such as prints, contact sheets, slides, photocopies, or even videotape. Id. § 202.20(c)(2)(xx)(B)-(H).

In addition to the group option for published photographs, there are four other options for registering multiple photographs with the same application. These options are summarized below.

Since 1978 the Office has allowed applicants to register a number of unpublished works with one application and one filing fee if the works qualify as an “unpublished collection.” To qualify for this option, the works must be unpublished, the works must have at least one common author, the copyright claimant for each work and the collection as a whole must be the same person or organization, the works must be assembled in an orderly form, and the applicant must provide a single title identifying the collection as a whole. Id. § 203.3(b)(4)(i)(B). Photographers may use this option to register their photographs if they satisfy these requirements, and at the present time there is no limit on the number of photographs that may be included within each collection. Under this option, the applicant may register the works using the electronic registration system or a paper application submitted on Form VA. Id. § 202.3(b)(2).

In all cases, the applicant must submit one copy of each photograph that is included in the collection. The applicant may submit the photographs in digital form (e.g., uploading digital files to the electronic registration system or mailing them to the Office on a CD-ROM or DVD-ROM, etc.) or physical form (e.g., prints, slides, photocopies, etc.), but all of the photographs must be submitted in the same format. Id. § 202.20(c)(2)(xx).

Without prejudice to the Register's general authority to create group registration options under Section 408(c)(2) at the Register's discretion, Congress also directed the Register to create a group option for works by the same individual author that were first published as a contribution to a periodical. 17 U.S.C. 408(c)(2). In response to this directive, the Office established a procedure known as the “group option for contributions to periodicals” or “GRCP.” See 43 FR 965, 966-67 (Jan. 5, 1978). Photographers may use this option to register their photographs if they satisfy the requirements set forth in the regulation. First, all the photographs must be taken by the same individual, and none of them can be a work made for hire. 37 CFR 202.3(b)(8)(i)(A)-(B). Second, all the photographs must be first published as a contribution to a periodical (e.g., a newspaper, a magazine, a journal, etc.) and they must be published within a twelve-month period (e.g., June 1, 2014 through May 31, 2015). Id. § 202.3(b)(8)(i)(C) & n.2. And, third, if the photographs were first published before March 1, 1989, each photograph must contain an appropriate copyright notice. Id. § 202.3(b)(8)(i)(D).

Under the current regulation, there is no limit on the number of photographs that may be registered under GRCP. The applicant must complete a paper application using Form VA and Form GR/CP.5 Id. § 202.3(b)(8)(ii)(A)-(B). The applicant must submit the photographs in the precise form in which they were first published, and the copies must be submitted in physical—rather than digital—form. See id. § 202.3(b)(8)(i)(E). For example, the applicant may submit the entire issue of the periodical that contains the photograph, the entire section of the newspaper that contains the photograph, a photocopy of the entire page from the periodical that contains the photograph, among other formats.6 See id.

In 1989, the Office created a procedure that allows database owners to register the updates and revisions to a database with one application and one filing fee. 37 CFR 202.3(b)(5); 54 FR 13177 (Mar. 31, 1989). The Office refers to this procedure as the “group database option.” In the late 1990s, some stock photography companies began using this option to register databases that contain large numbers of photographs. After consulting with representatives from the industry, the Office concluded that the database option could potentially be used to register a photographic database if certain requirements have been met. The Office noted this understanding in an earlier notice of proposed rulemaking that is discussed in Section III.A.1 below. See 76 FR 4072, 4075-76 (Jan. 24, 2011).

The requirements for the database option are extremely complex.7 Briefly stated, an applicant may register the updates or revisions that were made to a database over a period of three months if the updates and revisions are owned by the same claimant and if the general content and organization of the updates and revisions are similar. 37 CFR 202.3(b)(5). The applicant must submit a detailed statement that describes the content and organization of the database, and in the case of a photographic database, the applicant must submit one copy of each photograph that is included in the group. The applicant may submit an online application or a paper application. The applicant may submit the photographs in digital or physical form, but all the photographs must be submitted in the same format. 37 CFR 202.20(c)(2)(xx).

A registration for a photographic database covers the authorship involved in selecting, coordinating, and arranging the content of the database as a whole. It also may cover the individual photographs that are included within the database if the photographers transferred the exclusive rights in their respective works to the owner of the database, and if the selection, coordination, and/or arrangement of those photographs is sufficiently creative. See Compendium section 1117.2. That said, the Office has questioned whether this practice should be revised to limit the examination of a database to the authorship involved in creating the selection, coordination, and arrangement of the database as a whole and to exclude examination (and thus, the prima facie validity) of a claim in the component elements of the database. See 77 FR 40268, 40269 (July 9, 2012); see also 76 FR at 4073. The Office generally discourages photographers from registering their works as part of a photographic database and instead encourages them to use one of the other options discussed in this section, in part, because they provide a better registration record for claims in the individual component works within a database, as opposed to a claim in the database itself as a compilation of data. See 77 FR at 40269 n.1; 76 FR at 4073. Moreover, registering photographs as part of a photographic database may limit the copyright owner's ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.3 below.

Applicants may register a number of photographs with one application and one filing fee if they are part of a collective work. The statute defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” 17 U.S.C. 101. A collective work may consist entirely of photographs, such as a book of photographs, an exhibition catalog, or a retrospective book that contains photographs taken by a particular photographer. A collective work also may combine photographs with other types of authorship, such as a calendar, textbook, coffee table book, or similar types of works.

Applicants may register a collective work with an online application or a paper application. The claim may include photographs taken by multiple photographers, but the applicant does not need to name each photographer in the application and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and arranging the content of the collective work as a whole. It also may cover the individual photographs that are included within the collective work if (i) the claimant owns the copyright in both the individual photographs and the collective work as a whole, and if (ii) the photographs have not previously been published or registered. Although a registration for a collective work may cover the individual photographs contained therein, this type of registration may limit the copyright owner's ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.4 below.

The Proposed Rule does several things. First, the Office is proposing to amend the regulation that governs the group option for published photographs to reflect certain technical upgrades that will be made to the electronic registration system. Second, the Office is proposing to create, for the first time, an equivalent group registration option for unpublished photographs. This new procedure will be known as the “group option for unpublished photographs” or “GRUPH,” and it will replace the option that currently allows photographers to register their works as an unpublished collection. These first two amendments will increase the efficiency of the registration process for both published and unpublished photographs alike by requiring applicants to submit their claims through the electronic registration system. In addition, GRUPH will foster early registration, thereby eliminating complex questions that arise when published and unpublished photographs are commingled.

Third, the Office is proposing to update the deposit requirements for the group options for published photographs and photographic databases by requiring applicants to submit a digital copy of each photograph that is included in the group, and a separate document containing a sequentially numbered list that provides the title and file name for each photograph in the group. Applicants may submit these items by uploading them through the electronic system or by sending them on a physical storage device. This same requirement will apply to the new group option for unpublished photographs.

Finally, the Proposed Rule will memorialize the Office's longstanding position regarding the scope of a group registration for photographs.

Each of these proposals is discussed below.8

In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record. See U.S. Copyright Office, Office of the Chief Information Officer, Report and Recommendations of the Technical Upgrades Special Project Team (February 2015), available at http://copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf; see also Technological Upgrades to Registration and Recordation Functions, 78 FR 17722 (Mar. 22, 2013). In December 2015, the Register issued a strategic plan that sets forth the Office's performance objectives for the next five years. The plan provides a roadmap for re-envisioning almost all of the services that the Office provides, including how applicants register claims, submit deposits, record documents, share data, and access expert resources. With respect to information technology, the plan calls for “a robust and flexible technology enterprise that is dedicated to the current and future needs of a modern copyright agency.” U.S. Copyright Office, Strategic Plan 2016-2020: Positioning the United States Copyright Office for the Future, at 35 (Dec. 1, 2015), available at http://copyright.gov/reports/strategic-plan/USCO-strategic.pdf. At the direction of Congress,9 the Office also developed a detailed IT plan, and obtained public comments on specific strategies, costs, and timelines for technology objectives. U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://copyright.gov/reports/itplan/.

In the meantime, the Office has made some enhancements to the current electronic registration system that will benefit photographers, the Office, and the public at large. When the electronic registration system was introduced in 2007, it contained a “standard” application (referred to herein as the “standard online application”). Applicants could use this application to register a single work; they also could use this application to register a number of works as an unpublished collection or as part of a collective work. See 72 FR 36883, 36885 (July 6, 2007). But the standard online application was not meant to be used to register groups of published photographs, photographic databases, or contributions to periodicals, because the system was not designed to take in the information required for a group claim. Instead, photographers were required to submit these types of claims using a paper application submitted on Form VA (either alone or together with Form GR/PPh/CON or Form GR/CP).

Photographers soon expressed interest in using the electronic system, and beginning in 2010, some applicants began submitting large numbers of photographs with the standard online application. Although this application was not designed to handle group registrations, the Visual Arts Division processed some of these claims in cases where the application contained all the information required for a group claim. Based on this experience, the Office issued an interim regulation in 2011 that established a pilot program allowing applicants to register groups of published photographs and photographic databases with the standard online application.10 76 FR at 4074, 4075. Applicants that participate in the pilot program may submit their claims through the electronic system (rather than submitting a paper application), provided that they obtain prior authorization from the Visual Arts Division and follow the instructions from that Division concerning the information that should be included in the application and the proper method for submitting the deposit. 37 CFR 202.3(b)(5)(ii)(A), (b)(10)(xi).

The Office explained that, during the pilot, it would assess the desirability and feasibility of allowing applicants to submit groups of photographs through the electronic system on a permanent basis, and invited public comment on the issue. 76 FR 5106 (Jan. 28, 2011). The Professional Photographers of America (“PPA”) and other organizations that represent photographers supported the pilot program, predicting that the standard online application would require less time to complete than a paper application, and that applicants would receive their certificates in a more timely manner.11

While the pilot program was well-intentioned, it has been extremely burdensome for both applicants and the Office. The standard online application was designed to handle claims involving one work or a limited number of works. Using the existing architecture to provide title and publication information for hundreds or even thousands of photographs is necessarily challenging for applicants who are unfamiliar with the system. Examining these types of claims also requires significantly more time. In some cases, registration specialists have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration for such claims. Moreover, the increasing demand on the Office's limited resources has had an adverse effect on the examination of other types of works within the Visual Arts Division.

To address these concerns, the Office has decided to eliminate the pilot program for published photographs, and replace it with an online application specifically designed for groups of published photographs. (The pilot program for photographic databases will remain in effect for the time being, though as discussed in Sections D.2 and G.3, the deposit requirements for photographic databases will be modified in some respects.) In addition, the Office has created a new online application specifically designed for groups of unpublished photographs.

Under the Proposed Rule, applicants will be required to use the online application designated for GRPPH or GRUPH as a condition for using either of these group options. To facilitate this transition, the Office will contact each applicant that has participated in the pilot program for published photographs and will notify them that the pilot program will be replaced with a new procedure. The Office will provide instructions on how to complete the new applications on its Web site and in chapter 1100 of the Compendium. In addition, the Office will make its staff available to groups or associations that are interested in producing webinars or other educational programs for their members.

Once the Proposed Rule goes into effect, the Office will no longer accept groups of published photographs or groups of unpublished photographs that are submitted with a paper application on Form VA (either with or without Form GR/PPh/CON).12 Likewise, the Office will no longer accept these types of claims if they are submitted with a standard online application, rather than the online application designated for GRPPH or GRUPH.13 In such cases the Office will ask the applicant to resubmit the photographs using the appropriate application, which may affect the effective date of registration that is assigned to the claim. The Office invites comment on this proposal, including whether it should eliminate the paper application for these group options, phase them out after a specified period of time, or continue to offer them for photographers who prefer to use the paper-based system.

A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration,” including a registration for a group of related works. 17 U.S.C. 408(d). Specifically, it identifies an error or omission in an existing registration (referred to herein as a “basic registration”) and places the corrected information or additional information in the public record. The Office refers to this type of registration as a “CA,” which stands for “correction and amplification.”

The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the “CA Rulemaking”) that will modify the regulation that governs this procedure. Under the rule proposed in the CA Rulemaking, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration for any photograph that is capable of being registered through the electronic system—even if the work was originally registered with a paper application submitted on Form VA (either with or without Form GR/PPh/CON).

If the rules proposed in the CA Rulemaking and in this proceeding both go into effect, applicants will be required to file an online application in order to correct or amplify a basic registration for works registered under the GRPPH and GRUPH options. If an applicant attempts to use a paper application, the Office will ask the applicant to resubmit the claim using the online form. As discussed in Section III.C.1 below, if the basic registration encompasses more than 750 photographs, multiple applications may need to be submitted to correct or amplify that registration. Applicants will not need to contact the Visual Arts Division in order to correct or amplify a basic registration for a group of photographs registered under GRPPH or GRUPH.

This online-filing requirement will also apply when correcting or amplifying a basic registration for works registered under the pilot program for group registration option for photographic databases.14 Applicants will need to contact the Visual Arts Division before filing an application to correct or amplify a basic registration for a photographic database. This is due to the fact a supplementary registration for a photographic database will have to be submitted under the pilot program. As discussed in Section III.A.1, the Visual Arts Division closely monitors claims submitted under this program to ensure that applicants complete the online application in an appropriate manner.

Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on group registration of photographs.

A substantial majority of the U.S. population has access to the internet,15 and the Office expects that most photographers will be able to use the electronic system.16 That said, the Office recognizes that millions of Americans do not have broadband service, and that the Proposed Rule may impose a burden on photographers who fall within this segment of the population.17 Nevertheless, the Office believes that the benefits of requiring applicants to use the online application designated for GRPPH or GRUPH outweigh the potential burden on photographers who do not have direct access to the internet.

As discussed above, the PPA and other organizations that represent photographers expressed support for online registration in a prior rulemaking. They stated that “only a tiny fraction of photographers (1% according to PPA member surveys)” register their works with the Office, in part, because the paper application takes too much time to complete. PPA, supra note 11, at 1. Thus, requiring applicants to use the online application will encourage broader participation in the registration process.

If a photographer does not have broadband at home, at the home of a relative, friend, or neighbor, or at her place of employment, there are other options for registering large numbers of published or unpublished photographs. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.18 She could log onto the electronic system at a public library or other institution that provides computers with internet access. Although the photographer would have to submit the application through the electronic system and pay the filing fee through a secure Web site (www.pay.gov), she would not necessarily have to submit her photographs over the internet. As discussed in Section III.D.1.c, the photographer could save her photographs onto a flash drive or other storage device and mail it to the Office with the required shipping slip that is generated by the electronic registration system.

In the alternative, the photographer could hire an attorney to submit the application on her behalf, either by paying for the attorney's services or by obtaining pro bono representation.19 The Office also notes that a number of companies will prepare an application and file it with the Office for a fee. These companies typically provide this service for copyright owners who wish to register a single work, but they could conceivably expand their offering to include groups of photographs.

The Office's decision to offer a group option for photographers is entirely discretionary, and Congress gave the Office broad authority to set the requirements for these types of claims. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a group registration for a group of photographs is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule.

The filing fee for registering groups of published or unpublished photographs will be $55, which is the amount the Office currently charges for a group of published photographs submitted with an online application under the pilot program.20 37 CFR 201.3(c)(3)(i).

In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides to the public. Initially, the Office proposed to increase the filing fee for a group of published photographs, but after weighing the concerns expressed by photographers the Office decided to keep the fee for submitting an online application under the pilot program at $55 and the fee for submitting a paper application at $65. The Office noted that photographers “expressed significant concern about the impact of fees on their ability to protect their works,” given “the number of works they produce and must register in order to receive the full range of judicial remedies for infringement.” U.S. Copyright Office, Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On Or About April 1, 2014, at 15 (Nov. 14, 2013), available at http://www.copyright.gov/docs/newfees/USCOFeeStudy-Nov13.pdf.

Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than that necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5).

Once the Proposed Rule has been implemented, the Office will monitor the cost of processing groups of published and unpublished photographs to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study.

This section discusses the eligibility requirements for the group option for published photographs and the group option for unpublished photographs. Applicants that fail to satisfy these requirements will not be permitted to use these options.

Among the key requirements of the Proposed Rule are that all the works in the group must be photographs, the group must contain no more than 750 photographs, and the applicant must specify the total number of photographs that are included in the group. These requirements must be satisfied, regardless of whether the applicant uses the group option for published or unpublished photographs.

This represents a change in policy. Under the current regulation, applicants may register a group of published photographs by submitting a paper application on Form VA and may use Form GR/PPh/CON to provide titles, publication dates, and other pertinent information for each photograph. Completing Form GR/PPh/CON is optional, although it does provide certain advantages. See Compendium section 1116.2. When using Form GR/PPh/CON, the applicant may only include up to 750 photographs in each group. By contrast, if the applicant uses any other method for submitting a group of published photographs—such as completing the standard online application under the pilot program or submitting a paper application on Form VA without completing Form GR/PPh/CON—there is no limit on the number of photographs that may be included in the group. Likewise, when an applicant submits a number of photographs as an unpublished collection under § 202.3(b)(4)(i)(B), there is no limit on the number of photographs that may be included in the claim (regardless of whether the applicant submits the claim through the electronic system or with a paper application).

The Office recognizes that photographers are prolific creators. A photographer may take dozens or even hundreds of copyrightable images in a single session and thousands of images over the course of a week, a month, or a year. The Office created a group option for photographs, in part, because it is unrealistic and cost-prohibitive to expect photographers to register all of their images on an individual basis. At the same time, the Office recognizes that an effective public record must provide sufficient information about each claim. Photographers who register their works in a timely manner may be entitled to claim statutory damages in an infringement action and the granularity of the public record is critical to that determination.

Given resource limitations and the modest filing fee for this group option, the Office must impose some limit on the total number of photographs that may be submitted under the group option for published photographs and the new option for unpublished photographs. Based on its experience with Form GR/PPh/CON, the Office has determined that a limit of 750 photographs strikes an appropriate balance between the interests of photographers and the administrative capabilities of the Office.

To ensure that applicants do not attempt to circumvent the 750-photograph limit the Office proposes to eliminate the pilot program that allows applicants to submit groups of published photographs with the standard online application.21 If an applicant submits more than 750 photographs or fails to use the online application designated for GRPPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the claim to no more than 750 photographs.

For the same reason, the Office will no longer register a group of unpublished photographs as an unpublished collection. If an applicant submits more than 750 photographs or fails to use the online application designated for GRUPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the number of photographs in the group.

The limit on the number of photographs, in turn, will affect the procedure for correcting or amplifying a basic registration for a group of published photographs. As noted in Section III.A.2, the rule proposed in the CA rulemaking will require applicants to file an online application in order to seek a supplementary registration for a group of photographs. If the basic registration covers 750 photographs or fewer, the applicant will be able to correct or amplify the registration record with a single supplementary registration submitted through the online system. But if the basic registration was issued before the Proposed Rule goes into effect, and if that registration covers more than 750 photographs, multiple supplementary registrations may be needed to correct or amplify the record for those works.

Another key requirement is that all the photographs in the group must be taken by the same photographer. Applicants will not be allowed to submit groups of photographs taken by different photographers (e.g., 300 photographs by Raul Martinez, 300 photographs by Jose Rodriguez, and 150 photographs by Diego Hernandez). Likewise, the Office will not accept applications claiming that two or more individuals jointly created each photograph in the group as a joint work.22 These requirements are consistent with the regulation that currently governs GRPPH. See 37 CFR 202.3(b)(10)(ii).

In all cases, the claim will be limited to “photographs” and that term will be added automatically to the application by the electronic system. The system will not accept claims in “digital editing,” “compilation,” or any other form of authorship other than “photographs.” 23 Likewise, the Office will not allow applicants to add other forms of authorship to the claim during the examination process or with a supplementary registration.

In all cases, the copyright claimant for each photograph must be the same person or organization.24 Specifically, the claimant must be the author of all the photographs in the group, or the copyright owner that owns all the exclusive rights in those photographs.25

Applicants will be allowed to register a group of photographs if the claimant obtained all the exclusive rights in those works through a transfer of ownership. Likewise, applicants will be allowed to register a group of photographs as works made for hire (i) if all the photographs are identified in the application as works made for hire, (ii) if all the photographs were created by the same individual for the same employer, and (iii) if the photographer and the employer are both listed in the name of author field (e.g., “Advertising Agency LLC, employer for hire of John Smith”).26 However, the Office will not allow applicants to combine works made for hire with works obtained through a transfer of ownership. Similarly, the electronic system will not allow works created by one photographer to be combined with works created by a different photographer (even if those works are owned by the same claimant).

For example, if an advertising agency acquired a group of photographs from a particular photographer through an assignment of copyright and acquired another group of photographs taken by the same photographer through a work made for hire agreement, the agency could register those photographs under GRPPH or GRUPH only by separating the photographs into two groups and submit a separate application for each group (i.e., one application with the work made for hire question answered “yes” and the other with the question answered “no”). Likewise, if the agency hired five freelancers to take photographs pursuant to a work made for hire agreement, the agency should separate the photographs into five separate groups (i.e., one group for each photographer) and submit a separate application for each group.

The group options for published and unpublished photographs are designed to be mutually exclusive of each other. Under the Proposed Rule, an applicant will be allowed to register a group of unpublished photographs if all the photographs are unpublished, and will be allowed to register a group of published photographs if all the photographs are published. Applicants will not be allowed to combine published and unpublished photographs in the same claim. In addition, in the case of published photographs, all the works must be published within the same nation and within the same calendar year (e.g., January 1 through December 31, 2016).27 When completing the online application, applicants will be asked to verify this information by providing the earliest date and the most recent date that photographs were published during the year.

To register a group of published or unpublished photographs, applicants will be required to provide a title for the group as a whole, and will be required to include this information in the online application itself. For example, the applicant may provide a title that identifies the photographer and the month/year that the photographs were created, such as “Jack Jackson's photos May through July 2016,” or one that identifies the subject matter of the photographs, such as “Tropical Images from Hawaii.”

In addition to this basic information about the group of photographs, applicants will be required to submit a separate document in Excel format (“.xls”), Portable Document Format (“PDF”), or other electronic format that may be specifically approved by the Office that contains a sequentially numbered 28 list with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication 29 (e.g., “January 2016,” “February 2016,” etc.) for each photograph in the group.30 This list must be submitted together with the copies of the photographs, by uploading them through the electronic system or by sending them on a physical storage device. The specific requirements of this list are discussed below.

In addition, applicants will be encouraged—but not required—to provide title and publication information in the online application itself. The Office will provide instructions on its Web site that will explain how to copy this information from the numbered list into the appropriate fields in the online application.

Although applicants will not be required to provide title and publication information in the online application, there are certain advantages to doing so. If the applicant includes the titles in the online application, they will appear on the certificate of registration and in the Office's online database. This will improve the quality of the registration record by making the information more accessible to the public. If this information appears on the certificate, and if the certificate is issued within five years after the publication of a particular photograph, the certificate will create a legal presumption that the work was published in the month and year specified on the certificate. See 17 U.S.C. 410(c).

By contrast, if the applicant provides title and publication information in the numbered list, but does not include that information in the online application itself, the titles and publication dates will not appear on the certificate of registration or the Office's online database (although the Office will keep a copy of the numbered list in its files). In such cases, the Office will add an annotation to the record, such as “Regarding title: deposit contains complete list of titles that correspond to the individual photographs included in this group.”

In comments regarding the Office's pilot program for electronic registration of photographs, the PPA and other organizations stated that photographers struggle with the definition of “publication” and “the public,” and find it difficult to determine whether their works are published or unpublished, particularly when they are distributed in digital form. PPA, supra note 11, at 2-3. They explained that their members are reluctant to register their works, in part, because they worry about the possible consequences of classifying an unpublished photograph as a published work (or vice versa). They asked the Office to address this “barrier to registration” by providing clarification and guidance on these issues. Id. at 3.

The new group option for unpublished photographs will help mitigate this problem by encouraging early registration. The Office strongly encourages photographers to register their works before they are published (i.e., before any distributions have occurred), because this avoids much of the confusion concerning publication and the treatment of published works. The new group option supports this objective by giving photographers a convenient and cost-effective means for registering their photographs before they are distributed to the public.

In addition, the Office released a comprehensive revision of the Compendium in 2014, which sets forth and explains key administrative duties of the Copyright Office under title 17 of the United States Code. See 79 FR 78911, 78911-12 (Dec. 31, 2014). Among other improvements, the Compendium contains an entire chapter on publication. This chapter provides a detailed discussion of the definition of “publication” and “the public” and specific examples of how the Office applies these definitions to photographs and other types of works. See generally Compendium, chapter 1900. The Compendium provides guidance on how to determine whether a work is published or unpublished when it is posted on the internet or distributed online. See id. section 1008.3. It also explains how to correct an error in a registration if the applicant mistakenly claims that the work was published or unpublished. See id. sections 1802.6(I), 1802.7(C).

In the future, the Office intends to develop a portal on its Web site that will provide photographers with pertinent information on a wide range of copyright issues. In developing these resources it would be helpful to learn more about the specific methods that photographers use to distribute their works to their customers and the general public. The Office previously asked for written comments on this issue in the Visual Works Inquiry, and it welcomes additional input as part of this rulemaking.

The Proposed Rule will modify the deposit requirements for the group option for published photographs and the group option for photographic databases, and it will establish similar requirements for the new option for unpublished photographs. These requirements are summarized below.31

Under the Proposed Rule, applicants will be required to submit a digital copy of each photograph that is included in a group of published photographs (GRPPH) or a group of unpublished photographs (GRUPH). Applicants will be required to submit each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The Office will no longer accept physical copies, such as prints, contact sheets, slides, photocopies, videotapes, or clippings from a newspaper, magazine, or other publication. This should not impose a significant burden on photographers because it appears that the vast majority of them use digital cameras.

In addition, as noted above, applicants will be required to submit a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph in the group. The Office will provide a template on its Web site that may be used to prepare this list. The title and file name for a particular photograph may be the same, and may consist solely of numbers, letters, and spaces that were automatically assigned by the camera or a unique identifier that has been assigned to the image by a third party, such as the PLUS Registry. As noted above, the file names specified in the list must match the corresponding file names in the deposit copy. However, the file name should not contain slashes or any other form of punctuation. Including punctuation marks in the file name (other than spaces) may cause a system error that may prevent the Office from viewing the photographs. The Office also discourages applicants from stating “Untitled,” “No Title,” or the like, because interested parties typically search for works by title and it may be impossible to locate a particular photograph unless a meaningful title has been provided.

The Office will use the list to examine and document the claim, particularly in cases where the applicant does not provide title or publication information in the online application itself. In addition, the Office may use the list to locate and retrieve the deposit in the event it is needed for litigation or other legitimate purposes. For these reasons, the titles and file names specified in the list must correspond to the titles and files names for the actual photographs that are included in the deposit. In this respect, the Proposed Rule builds upon a suggestion that the Digital Media Licensing Association (“DMLA”) offered in a prior rulemaking.32

The list must be contained in an electronic file in Excel format (“.xls”), Portable Document Format (“PDF”), or other electronic format that may be specifically approved by the Office. The file name for the list must include the title of the group as a whole and the eleven-digit case number that is automatically assigned to the application by the electronic system (e.g., ” [Title of Group] Case Number 12345678910”). The Office will provide further guidance regarding the preferred format and naming conventions for these file names on its Web site and in Chapter 1100 of the Compendium. When completing the online application, applicants will be asked to provide the file name for this document in the application itself. This will help the Office connect the numbered list with the relevant application, and to distinguish it from the files that contain the digital photographs.

Applicants will be required to submit the files containing the digital photographs together with the file that contains the sequentially numbered list of photographs. Applicants may upload these files through the electronic system. Alternatively, they may save them onto a physical storage device, such as a flash drive or a CD-R or DVD-R, and send it to the Office by mail, by courier, or by hand delivery together with the required shipping slip.

When submitting files through the electronic system, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file must not exceed 500 megabytes, although the applicant may digitally compress the photographs to comply with this limitation.

When submitting files on a flash drive or other storage device, applicants must send that device in the same package with the shipping slip that is generated by the electronic system. If the applicant fails to include the required shipping slip, the Office may be unable to connect the storage device with the appropriate application. In such cases, the applicant will be required to pay an additional fee to search for the deposit and connect it with the application. If the deposit cannot be located, the applicant will be required to resubmit the storage device, which may change the effective date of registration for the claim.

Packages that are delivered to the Office by mail or by courier will be irradiated to destroy possible contaminants, such as anthrax. This process may damage files stored on electronic media. To avoid this result, applicants will be strongly encouraged to send physical storage devices to the Office in boxes rather than envelopes. Additional information concerning the recommended procedure for delivering physical deposits by mail or by courier will be provided in the Compendium.

The Proposed Rule will impose the same deposit requirements on a database that consists predominantly of photographs. Specifically, database owners will be required to submit a digital copy of each photograph that is included in the claim, and a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph.33 Database owners will be required to submit digital copies, regardless of whether they intend to file an online application under the pilot program (in which case the photographs and the numbered list may be uploaded to the electronic system or submitted on a physical storage device with the required shipping slip) or a paper application (in which case the photographs and the numbered list may be submitted on a physical storage device together with Form VA).34

An application for a group registration may be filed at any time. However, a photograph must be registered in a timely manner to seek statutory damages and attorney's fees in an infringement action. Specifically, a copyright owner typically may seek these remedies if a photograph was registered (i) before the infringement commenced or (ii) within three months after the first publication of that work. See 17 U.S.C. 412.

In the case of unpublished photographs, the Office strongly encourages photographers to register their works before sharing them with any other party. By doing so, photographers preserve the ability to seek statutory damages and attorney's fees in subsequent infringement disputes involving those works.

In the case of published photographs, the Office encourages photographers to submit their claims every three months (instead of filing on an annual or semi-annual basis), and in each case, to file the claim within three months after the earliest date of publication specified in the application. For example, if a photographer first published his or her photographs on June 1, 2016, it would be advisable to submit a complete application, deposit, and filing fee on or before September 1, 2016. By doing so, the photographer would preserve his or her ability to seek statutory damages and attorney's fees for any infringements that began after the effective date of registration (i.e., after September 1, 2016), as well as any infringements that occurred within three months after the date of publication (i.e., between June 1, 2016 and September 1, 2016).

The Proposed Rule memorializes the Office's longstanding position regarding the scope of a registration for a group of published photographs, and it confirms that the Office will take the same position regarding the group option for unpublished photographs.

When the Office issues a group registration, it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of published or unpublished photographs covers each photograph in the group, and that each photograph is registered as a separate “work.” This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was “a needed and important liberalization of the law [then] in effect,” which to that point had required “separate registrations where related works or parts of a work are published separately.” H.R. Rep. No. 94-1476, at 154 (1976). In particular, Congress noted that “the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.” Id. Given that context, it would be anomalous for works registered as part of a group registration application to be given less protection than if they had been registered through separate applications.

For similar reasons, the Proposed Rule also clarifies that when a group of photographs is registered under GRPPH or GRUPH, the group as a whole is not considered a compilation or a collective work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. The group is merely an administrative classification created solely for the purpose of registering multiple photographs with one application and one filing fee. See 17 U.S.C. 408(c)(1) (“Th[e] administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.”). Although an applicant may exercise some judgment in selecting the photographs that are included within a particular group, that decision does not necessarily constitute copyrightable authorship. Instead, the selection is based on the regulatory requirements for these group options, and any coordination or arrangement of the photographs is merely an administrative formality that facilitates the examination of the works.

Likewise, the Proposed Rule clarifies that the group is not considered a derivative work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. When a group of photographs is compiled for the purpose of facilitating registration, those works are not “recast, transformed, or adapted” in any way, and the group as a whole is not “a work based upon one or more preexisting works” because there is no copyrightable authorship in simply following the administrative requirements for GRPPH or GRUPH. 17 U.S.C. 101 (definition of “derivative work”).

This section discusses the key differences between the options for registering a group of published or unpublished photographs as compared to the options for registering an unpublished collection, a group of contributions to periodicals, a photographic database, or a collective work.

The group option for unpublished photographs is intended to replace the option that currently allows an applicant to register a number of photographs as an unpublished collection. Once the Proposed Rule goes into effect, the Office will no longer accept an application to register photographs under § 202.3(b)(4)(i)(B) of the regulations, regardless of whether the photographs are submitted with a standard application or a paper application (although the Office will continue to accept applications to register other types of works under this provision).

As explained, the GRUPH option provides a more efficient mechanism for capturing information about photographs, and incorporating that information into the public record. Requiring applicants to use this option may also provide photographers with certain legal benefits.

When an applicant submits photographs via the unpublished collection option, and asserts a claim in both the individual photographs as well as the selection and arrangement of the collection as whole, the Office will register the claim as an unpublished collective work, rather than an unpublished collection. A collective work is—by definition—a form of compilation. 17 U.S.C. 101 (“The term `compilation' includes collective works.”). Section 504(c)(1) of the Copyright Act states that a copyright owner may be entitled to recover “an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,” but “[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.” 17 U.S.C. 504(c)(1). In other words, when a number of photographs are registered as an unpublished collective work, the copyright owner would be entitled to seek only one award of statutory damages in an infringement action, rather than a separate award for each photograph.

In contrast, as noted above in Section III.F, when a number of photographs are registered under the GRUPH option, each photograph is registered as a separate work. For purposes of registration, the group as a whole is not considered a collective work or compilation, and thus, the individual photographs within the group would not be subject to the limitation on statutory damages set forth in section 504(c)(1). Instead, a registration for a group of unpublished photographs is treated as a separate registration for each photograph that is included within the group.

The group option for published photographs is not intended to alter or replace the group option for contributions to periodicals. Photographers may continue to register their works as a group of published photographs or a group of contributions to periodicals, as long as they satisfy the relevant requirements for each option.

There are some notable differences between these registration options. While a group of published photographs may include no more than 750 images, there is no limit on the number of photographs that may be included within a group of contributions to periodicals. Moreover, a group of published photographs may include photographs that were published during the same calendar year, while a group of contributions to periodicals may include photographs that were published over a twelve-month period—even if that period extends from one calendar year to the next (e.g., September 1, 2015 through August 31, 2016). In addition, to be eligible for GRPPH, the photographs may be published in any manner, but there is no need to specify the medium of publication and no need to submit the photographs in the specific form in which they were first published. To be eligible for GRCP, the photographs must be first published in a periodical (e.g., a newspaper, a magazine, etc.), the applicant must provide pertinent information about each periodical (e.g., title, issue number, publication date, etc.), and the applicant must submit a copy of the photographs as they appeared in each publication (e.g., a copy of the entire periodical, a copy of an entire section from a newspaper, etc.).

The Office generally encourages applicants to use GRPPH, in part, because the deposit requirements for published photographs are more flexible than the deposit requirements for GRCP. Regardless of whether the applicant uses GRPPH or GRCP, the registration will cover all the photographs that are included within the group.

As noted above, the Proposed Rule makes certain modifications to the deposit requirement for databases that predominantly consist of photographs. The Proposed Rule will not change any of the other requirements for these types of claims. See 37 CFR 202.3(b)(5); 202.20(c)(2)(vii)(D)(8).

Although the Office will continue to accept these claims, the Office strongly encourages photographers, stock photography companies, database providers, and other interested parties to register their works with the group option for published or unpublished photographs—rather than the database option—for several reasons. Many photography Web sites and catalogs do not qualify as a database, and therefore, are not eligible for the group option for photographic databases. For purposes of registration, a database is defined “as a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects. In all cases, the content of a database must be arranged in a systematic manner, and it must be accessed solely by means of an integrated information retrieval program or system with the following characteristics.” Compendium section 1117.1. First, “a query function must be used to access the content.” Id. Second, “[t]he information retrieval program or system must yield a subset of the content, or it must organize the content based on the parameters specified in each query.” Id.

Stock photography Web sites or catalogs that merely display photographs do not satisfy these requirements and therefore are not considered databases for the purpose of registration. In most cases, users may access all the content on a Web site or in a catalog by scrolling or browsing through the individual images or categories of related images. Id. section 1002.6. By contrast, users cannot access the content of a database in its entirety. Id. Instead, they must use a query function to identify specific content within the database, and they must use an information retrieval system to extract the content that matches the user's search criteria. Id. While a user may view the entire content of a Web site or catalog, a user may view the content of a database only to the extent that it matches a particular query that the user entered into the information retrieval system. Id. While some Web sites may provide a search feature that may be used to locate particular images or categories of images, these types of features do not qualify as an information retrieval system nor do they transform an ordinary Web site into a database, because these features are not the sole means for accessing the images posted on the site. See id. If the Office determines that a particular Web site, catalog, or other work does not qualify as a database, the Office will refuse to register the work as a database or as a group of updates or revisions to a photographic database.

Copyright owners also should consider the following issue before registering their photographs as part of a photographic database. As noted above in Section III.G.1, the Copyright Act states that a copyright owner may be entitled to recover “an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,” but “[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.” 17 U.S.C. 504(c)(1). A database is—by definition—a compilation. See Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673, 676 (9th Cir. 2014) (concluding that a photographic database is a collective work); see also Compendium section 1117.1 (same). Consequently, when a group of photographs is registered as a database, the copyright owner may be entitled to seek only one award of statutory damages for the database as a whole—rather than a separate award for each photograph—even if the defendant infringed all the photographs that are covered by the registration.

By contrast, when a copyright owner registers a group of photographs under GRPPH or GRUPH, the registration covers each photograph in the group, but the group itself is not a compilation within the meaning of the Copyright Act. Therefore, any claim for infringement would not be subject to the limitation set forth in Section 504(c)(1) of the Copyright Act. For these reasons, the group options for published and unpublished photographs provide significant benefits, while avoiding the potential downside of registering a number of works as part of a photographic database.

The Proposed Rule will not change the requirements for registering a number of photographs as part of a collective work, such as a book of photographs, a travel guide, or the like. Applicants may continue to register these types of works with a standard application submitted through the electronic system or with a paper application submitted on Form VA.

Registration of photographs as part of a collective work differs in many respects from group registration of photographs. A registration for a collective work may include photographs taken by multiple photographers (even if the photographers are not explicitly named in the application), and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and/or arranging the content of the collective work as a whole. It also may cover the individual photographs that appear in the collective work if the claimant owns the copyright in those images and the collective work as a whole, and if the photographs have not been previously published or registered.

There are some drawbacks to registering photographs as a collective work. As discussed in Section III.G.1, a collective work is—by definition—a compilation. As such, these types of works are subject to the limitation set forth in section 504(c)(1) of the Copyright Act. When a number of photographs are registered as part of a collective work, the copyright owner may be entitled to receive only one award of statutory damages in an infringement action, even if the defendant infringed all the photographs that appear in that work (regardless of whether the collective work is published or unpublished). By contrast, when a group of photographs are registered under GRPPH or GRUPH, the copyright owner would not be subject to the collective-work limitation in section 504(c)(1). For this reason, photographers may wish to register their photographs under GRPPH or GRUPH, even if those works also may be eligible for registration as part of a collective work.

The Proposed Rule will move the regulation governing published photographs from § 202.3 to § 202.4.35 In the future, the Office intends to move all regulations governing the various group options that have been implemented under section 408(c) of the Copyright Act to § 202.4. This change is intended to improve the readability of the existing regulations, but it does not represent a substantive change in policy.

In addition, the Proposed Rule incorporates the definitions of “claimant” and “Class VA” that are set forth in § 202.3, and it confirms that an application for a group of photographs may be submitted by any of the parties listed in § 202.3(c)(1), namely (i) the author or copyright claimant of those works, (ii) the owner of any of the exclusive rights in those works, or (iii) a duly authorized agent of any author, claimant, or owner of exclusive rights.

The Proposed Rule will allow broader participation in the registration system by expanding the class of works that may be registered as a group, increase the efficiency of the registration process, and create a more robust record of the claim. The Office invites public comment on these proposed changes.

For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows:

The revisions and additions to read as follows:

The revisions to read as follows:

The revision to read as follows:

I. Background

Section 408(d) of the Copyright Act authorizes the Register of Copyrights (the “Register”) to establish “formal procedures for the filing of an application for supplementary registration.” 17 U.S.C. 408(d). A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration.” Id. Specifically, it identifies an error or omission in an existing registration (referred to herein as a “basic registration”) and places the corrected information or additional information in the public record.

When the U.S. Copyright Office (the “Office”) issues a supplementary registration, it does not cancel or replace the basic registration or the registration number for that registration. Likewise, the Office does not change the information set forth in the basic registration or the public record for that registration. Instead, as specified by statute, the basic registration and the supplementary registration coexist with each other in the public record, and “the information contained in a supplementary registration augments but does not supersede that contained in the earlier registration.” Id.

The Office is proposing to amend the regulation that governs the procedure for seeking a supplementary registration (the “Proposed Rule”). Under the Proposed Rule, in most cases, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration.

The Office has allowed and encouraged applicants to register their works through the electronic registration system since 2007. See 72 FR 36883 (July 6, 2007). When the Office introduced this system, it could be used only to seek a basic registration. To seek a supplementary registration, applicants had to submit a paper application using Form CA. 37 CFR 201.5(c)(1), (c)(2). In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record. See U.S. Copyright Office, Office of the Chief Information Officer, Report and Recommendations of the Technical Upgrades Special Project Team (Feb. 2015), available at http://copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf; see also 78 FR 17722 (Mar. 22, 2013). In December 2015 the Register issued a strategic plan that sets forth the Office's performance objectives for the next five years. The plan provides a roadmap for re-envisioning almost all of the services that the Office provides, including how applicants register claims, submit deposits, record documents, share data, and access expert resources. With respect to information technology, the plan calls for “a robust and flexible technology enterprise that is dedicated to the current and future needs of a modern copyright agency.” U.S. Copyright Office, Strategic Plan 2016-2020: Positioning the United States Copyright Office for the Future, at 35 (Dec. 1, 2015), available at http://www.copyright.gov/reports/strategic-plan/sp2016-2020.html. At the direction of Congress,1 the Office has also developed a detailed IT plan, and obtained public comments on specific strategies, costs, and timelines for technology objectives. U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://copyright.gov/reports/itplan/.

In the meantime, the Office has made some enhancements to the current system that will improve the versatility of the supplementary registration process. Under the Proposed Rule, applicants will be required to use the online registration system to file a supplementary registration for any types of works that are capable of being registered through the electronic system. This online filing requirement will thus apply to supplementary registrations for literary works (e.g., fiction, nonfiction, poetry, etc.), single issues of a serial publication (e.g., periodicals, magazines, newsletters, journals, etc.), works of the visual arts (e.g., photographs, maps, technical drawings, etc.), works of the performing arts (e.g., musical works, dramatic works, choreographic works, pantomimes, motion pictures and other audiovisual works, etc.), and sound recordings. See 37 CFR 202.3(b). The online filing requirement will also extend to supplementary registrations for collective works, works registered under the unit of publication option, and works registered as an unpublished collection. See 37 CFR 202.3(b)(4). It will also apply to supplementary registrations for groups of serials,2 newspapers, or newsletters,3 groups of published photographs,4 or groups of updates and revisions to a photographic database.5 In the near future, the online filing requirement will apply to supplementary registrations for groups of unpublished photographs,6 and groups of contributions to periodicals.7 If the Office subsequently decides to move registrations for other classes of works into the electronic system, supplementary registrations for those works will also be subject to this same requirement. In short, use of the online supplementary registration application will be required for most works. Moreover, applicants will generally be required to use the online registration system to file a supplementary registration even if the work was originally registered using a paper application.8 Instructions for completing the online application will be provided in the electronic system and in Chapter 1800 of the Compendium of U.S. Copyright Office Practices, Third Edition (hereinafter “Compendium”).9

Once the Proposed Rule goes into effect, applicants will not be allowed to submit a paper application on Form CA to correct or amplify the basic registration for any types of works that are capable of being registered through the electronic system. If the Office receives such a paper application, it will ask the applicant to resubmit the claim using the online application.

To correct or amplify the registration record for works that cannot be registered through the electronic system, applicants will be required to submit a paper application using Form CA.10 This includes group registrations issued under 37 CFR 202.3(b)(5) for a database that does not consist predominantly of photographs,11 and GATT registrations issued under 37 CFR 202.12 for a foreign work restored to copyright protection under the Uruguay Round Agreements Act.12 It also includes a renewal registration for a work registered or first published before January 1, 1978.13 While instructions for completing Form CA are provided with Form CA and in section 1802.8 of the Compendium, the specific requirements for the paper application will no longer be listed in the regulation itself.

A substantial majority of the U.S. population has access to the internet,14 and the Office expects that most copyright owners will be able to use the electronic registration system.15 However, the Office recognizes that millions of Americans do not have broadband service, and that the Proposed Rule may impose a burden on copyright owners who fall within this segment of the population.16 Nevertheless, the Office believes that the benefits of phasing-out the paper application and replacing it with an online application outweigh the potential burden on copyright owners who do not have direct access to the internet.

Paper applications are extremely burdensome for both applicants and the Office. Describing an error or omission in a basic registration can be tedious and time consuming, especially when the applicant needs to make a significant number of changes to the registration record. The Office routinely receives applications that are hundreds of pages long, such as when a stock photography company wants to add thousands of titles to the record for a photographic database. Examining these applications imposes tremendous burdens on the Office, because each correction or amplification must be copied from Form CA and entered into the record by hand. In some cases, registration specialists have spent several days on a single application. This increasing demand on the Office's limited resources causes delays in issuing supplementary registrations, and it prevents specialists from examining other types of claims thereby increasing the overall backlog within the Office.

If a copyright owner does not have broadband at home, at the home of a relative, friend, or neighbor, or at his place of employment, there are other options for submitting an application for supplementary registration. If the copyright owner has a tablet or laptop, he could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.17 He also could log onto the electronic registration system by going to a public library that provides computers with internet access.

In the alternative, the copyright owner could hire an attorney to submit the application on his behalf, either by paying for the attorney's services or by obtaining pro bono representation.18 The Office also notes that a number of companies will prepare and submit an application for a fee. These companies typically provide this service for copyright owners seeking a basic registration, but they could conceivably expand their offering to include supplementary registrations.

For the foregoing reasons, the Office believes that requiring applicants to use the online application is a reasonable trade-off for improving the overall efficiency of the supplementary registration process. The Office invites comment on this proposal, including whether the Office should eliminate the paper application for seeking a supplementary registration, phase out this option after a specified period of time, or continue to offer this option for applicants who prefer to use the paper-based system.

Under the Proposed Rule, the applicant will be required to pay the same filing fee, regardless of whether the application is submitted through the electronic registration system or on Form CA. In addition, the applicant may be required to pay a fee to locate and obtain a copy of the basic registration that is referenced in the application. Each of these fees is discussed below.

In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides to the public. After reviewing its costs, the Office decided to increase the filing fee for a supplementary registration from $100 to $130.19 The Office explained that paper applications “are considerably less efficient than electronic registration” and that the prior fee did not offset a sufficient percentage of the costs associated with these types of claims. U.S. Copyright Office, Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On Or About April 1, 2014, at 18 (Nov. 14, 2013), available at http://www.copyright.gov/docs/newfees/USCOFeeStudy-Nov13.pdf. For example, in Fiscal Year 2011 the filing fee for a supplementary application was $100, but the actual cost of processing these claims was $184 per application. Id. Appendix B.

Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a supplementary registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no “more than necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.” 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5).

Once the Proposed Rule has been implemented, the Office will monitor the cost of processing supplementary claims to determine if future fee adjustments may be warranted or if the Office should charge a different fee for claims submitted through the electronic registration system and claims submitted on Form CA. The Office will use this information in conducting its next fee study.

When the Office receives an application for a supplementary registration, the registration specialist will compare the information set forth in the application with the information set forth in the basic registration. If the Office has made a digital copy of the certificate of registration, the specialist may be able to conduct his or her review without obtaining a physical copy of the certificate.20 If the certificate has not been digitized, the specialist will ask the applicant to submit a copy of the certificate. If the applicant is unable to do so, the Office will charge an additional fee to make a copy of the basic registration in order to conduct the requisite review.21

The Proposed Rule also updates examination practices in several areas, including, among other things, to reflect changes to the Compendium of Copyright Office Practices, to update rules regarding when supplementary registration will be declined, and to update practices regarding cross-references in the Office's public record.

Changes to Reflect Compendium. The Compendium is the manual of the Register of Copyrights setting forth and explaining key administrative duties of the Copyright Office under title 17 of the United States Code. It serves as both a technical manual for the Office's staff, as well as a guidebook for authors, copyright licensees, practitioners, scholars, the courts, and members of the general public. In 2014 the Office released a comprehensive revision of the Compendium that makes the Office's practices more accessible and transparent to the public, and sets the stage for a number of long-term improvements in registration and recordation policy. See 79 FR 78911 (Dec. 31, 2014).

The Proposed Rule updates a number of practices that are reflected in the Compendium. 22 It clarifies that the Office may issue a supplementary registration to correct an error in a basic registration issued on or after January 1, 1978, or a renewal registration for a work that was registered or first published on or before December 31, 1977. See Compendium section 1802.3.

Updating Rules for When Supplementary Registration Will Be Denied. The Proposed Rule also clarifies that the Office may decline to issue a supplementary registration for a basic registration that covered the first twenty-eight years of the copyright term, because any registration issued before January 1, 1978 has expired by now.23 See id. section 1802.4. Allowing interested parties to correct or amplify the information in a registration after the initial term expired creates a potential for error, mistake, or even fraud. This could have significant consequences in a legal dispute, given that a certificate of registration may create an evidentiary presumption concerning the facts stated in the certificate.24 17 U.S.C. 410(c). Therefore, the Proposed Rule explains that the Office may issue a supplementary registration for a basic registration that covered the first twenty-eight years of the copyright term only in exceptional circumstances, if the proposed correction or amplification is supported by clear, convincing, and objective documentation. In this respect, the Proposed Rule tracks a similar provision in the current regulation that specifies when the Office may issue a supplementary registration for a basic renewal registration.25

Cross-references to Basic Registration. Under the current regulations, when the Office issues a supplementary registration, it will cross-reference the records for the supplementary registration and the basic registration only if the application for supplementary registration was submitted by or on behalf of the copyright claimant named in the basic registration.26 See 37 CFR 201.5(b)(1) n.1. If the application was submitted by or on behalf of any other party, the records will not be cross-referenced with each other. See Compendium section 1802.1.

After further consideration, the Office has concluded that these cross-references should be included regardless of who has submitted the application for supplementary registration. This amendment will improve the accuracy and usefulness of the public record by making it easier to find supplementary registrations that may contain additional information pertaining to the basic registration (regardless of who submitted the application for supplementary registration). If an interested party wishes to identify the person who made the correction or amplification, that information can be obtained by reviewing the records for the supplementary registration.27

Clarifying Relationship Between Basic and Supplementary Registration. An additional change is being made to clarify the nature of a supplementary registration. As a general rule, the Office will issue only one registration for each work—meaning that the Office will issue one basic registration for a particular work, but will not issue additional basic registrations once the first basic registration has been made. See Compendium section 510. There are several exceptions to this rule, which are set forth in 37 CFR 202.3(b)(11)(i)-(iv).

One of the exceptions relates to supplementary registrations, stating that “[s]upplementary registrations may be made . . . to correct or amplify the information in a registration made under this section.” 28 This erroneously suggests, however, that supplementary registrations are treated as basic registrations. The Proposed Rule will accordingly remove this exception; because a supplementary registration is not considered a basic registration, there is no limit on the number of supplementary registrations that may be issued for a particular basic registration, and in any event, the Office does not view supplementary registration as an exception to the general rule against issuing one basic registration per work.

Certification that Applicant Has Reviewed Basic Registration. It has come to the Office's attention that applicants often submit an application for supplementary registration without reviewing the information that is set forth in the basic registration. In some cases, applicants review the records that are posted in the Office's online database, but those records do not contain all the information that is set forth in the certificate of registration for a particular work. This may create a discrepancy between the registration record and the changes proposed in the application for supplementary registration. This complicates the examination of the claim, which, in turn, delays the issuance of the supplementary registration.

The Proposed Rule addresses this issue by requiring applicants to sign a certification stating that they reviewed the certificate of registration for the basic registration before submitting the application for supplementary registration.29 If the applicant does not have a copy of the certificate, he or she may obtain a copy from the Record Research and Certification Section by following the procedure set forth in section 2408 of the Compendium. If it appears that the applicant did not review the basic registration before seeking a supplementary registration, the Office may ask the applicant to resubmit the application or may refuse registration.

Referral Procedure for Office Error. Finally, the Proposed Rule clarifies that if an error in a basic registration was caused by the Office's own action, it will correct that error on its own initiative through an internal procedure known as a “referral.” In such cases, there is no need to seek a supplementary registration, and there is no fee for referral. See Compendium section 1804. It also clarifies that the referral procedure does not apply if the error was caused by the applicant's action—even if the examiner should have recognized that error when he or she examined the claim. In such cases, the Office will correct the error only if the applicant submits an application for a supplementary registration together with the appropriate filing fee.

The Proposed Rule will improve the readability of the regulation by reorganizing or revising awkward provisions, and by adopting the appropriate format for providing cross-references within the Code of Federal Regulations (as recommended by the Federal Register Document Drafting Handbook).30 In all cases, these technical amendments are intended to clarify the existing regulation, but they do not represent a substantive change in policy.

The Proposed Rule will increase the efficiency of the supplementary registration process and create a more robust record of the claim. The Office invites public comment on these proposed changes.

For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR parts 201 and 202 as follows:

Throughout this document, “we,” “us” and “our” refer to the EPA.

Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resourced Board (CARB).

Table of Contents I. What are the actions EPA is proposing to take? II. What is the background for EPA's proposed actions? III. What are the criteria for redesignation? IV. Why is EPA proposing these actions? V. What is EPA's analysis of the redesignation request and SIP revisions? VI. What is the effect of EPA's proposed actions? VII. Proposed Actions VIII. Statutory and Executive Order Reviews I. What are the actions EPA is proposing to take?

EPA is proposing to take the following five separate but related actions regarding Kentucky's aforementioned requests and SIP submission: (1) To approve Kentucky's RACM determination for the Kentucky portion of the Campbell-Clermont, KY-OH Area pursuant to Clean Air Act (CAA or Act) section 172(c)(1) and incorporate it into the SIP; (2) to approve the base year emissions inventory for the 2010 1-hour SO2 NAAQS for the Kentucky portion of the Area pursuant to CAA section 172(c)(3) and incorporate it into the SIP; (3) to approve the Commonwealth's March 31, 2015, request for EPA to determine that the Area attained the 2010 1-hour SO2 NAAQS per EPA's “Clean Data Policy;” (4) to approve Kentucky's plan for maintaining the 2010 1-hour SO2 NAAQS (maintenance plan) in the Area and incorporate it into the SIP; and (5) to redesignate the Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour SO2 NAAQS. The Campbell-Clermont, KY-OH Area consists of a portion of Campbell County in Kentucky and a portion of Clermont County in Ohio.1 These proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

Based on the 1-hour SO2 nonattainment designation for the Area, Kentucky was required to develop a nonattainment SIP revision addressing certain CAA requirements. Among other things, the Commonwealth was required to submit a SIP revision addressing RACM and base year inventory requirements pursuant to CAA section 172(c)(1) and section 172(c)(3), respectively, for its portion of the Area. Although EPA does not believe that section 172(c)(1) RACM must be approved into a SIP prior to redesignation of an area to attainment once that area is attaining the NAAQS, EPA is proposing to approve Kentucky's RACM determination into its SIP pursuant to a recent decision by the United States Court of Appeals for the Sixth Circuit (Sixth Circuit), as discussed in Section V.A, below. EPA is also proposing to approve Kentucky's 2011 base year inventory as satisfying section 172(c)(3) requirements.

On November 21, 2016, EPA published its final approval of the redesignation request and maintenance plan for the Ohio portion of the Area. See 81 FR 83158. As part of that final action, EPA determined that the entire Area has attained the 2010 1-hour SO2 NAAQS. Based on EPA's final determination of attainment, EPA is proposing to approve Kentucky's March 31, 2015, request for EPA to determine that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO2 NAAQS per EPA's “Clean Data Policy.” Under the Clean Data Policy, a determination that an area is attaining the NAAQS suspends the obligations to submit an attainment demonstration and associated RACM, RFP plans, contingency measures, and certain other planning-related requirements until EPA redesignates the Area to attainment (at which time the requirements no longer apply) or EPA determines that the Area violates the standard.2

EPA is also proposing to approve Kentucky's maintenance plan for its portion of the Campbell-Clermont, KY-OH Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status) and incorporate it into the SIP. The maintenance plan is designed to keep the Area in attainment of the 2010 1-hour SO2 NAAQS through 2027.

EPA also proposes to determine that the Kentucky portion of the Campbell-Clermont, KY-OH Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of the portion of Campbell County, Kentucky, within the Campbell-Clermont, KY-OH Area, as found at 40 CFR part 81, from nonattainment to attainment for the 2010 1-hour SO2 NAAQS.

In summary, this proposed rulemaking is in response to Kentucky's March 31, 2015, submittal requesting a clean data determination and to Kentucky's February 22, 2016, redesignation request and associated SIP submission that address the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour SO2 NAAQS.

On June 2, 2010, EPA revised the primary SO2 NAAQS, establishing a new 1-hour SO2 standard of 75 parts per billion (ppb). See 75 FR 35520 (June 22, 2010). Under EPA's regulations at 40 CFR part 50, the 2010 1-hour SO2 NAAQS is met at a monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb (based on the rounding convention in 40 CFR part 50, appendix T). See 40 CFR 50.17. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. A year meets data completeness requirements when all four quarters are complete, and a quarter is complete when at least 75 percent of the sampling days for each quarter have complete data. A sampling day has complete data if 75 percent of the hourly concentration values, including state-flagged data affected by exceptional events which have been approved for exclusion by the Administrator, are reported.3

Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the NAAQS. At the time EPA conducted the initial round of designations for the 2010 1-hour SO2 primary NAAQS, Campbell County contained an SO2 monitor which registered violations of the standard based on the three most recent years of complete, quality assured, and certified ambient air quality data. Using 2009-2011 ambient air quality data, EPA designated the Area as nonattainment for the 2010 1-hour SO2 NAAQS on August 5, 2013 (78 FR 47191), which became effective on October 4, 2013. This nonattainment designation established an attainment date five years after the October 4, 2013, effective date for areas designated as nonattainment for the 2010 1-hour SO2 NAAQS. Therefore, the Campbell-Clermont, KY-OH Area's attainment date is October 4, 2018. KDAQ was also required to submit a SIP to EPA that meets the requirements of CAA sections 172(c) and 191-192 within 18 months following the October 4, 2013, effective date of designation (i.e., April 4, 2015).

As mentioned above, on March 31, 2015, KDAQ submitted a request for EPA to determine that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO2 NAAQS per EPA's “Clean Data Policy.” Subsequently, on February 22, 2016, KDAQ submitted to EPA a request for redesignation of the Campbell-Clermont, KY-OH Area to attainment and a SIP revision containing a maintenance plan for the Kentucky portion of the Area.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided that the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations, and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992 (57 FR 13498), EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in several guidance documents. For the purposes of this proposed action, EPA will be referencing three of these documents: (1) The September 4, 1992, memorandum from John Calcagni titled “Procedures for Processing Requests to Redesignate Areas to Attainment” (hereinafter referred to as the “Calcagni Memo”); (2) the October 14, 1994, memorandum from Mary D. Nichols titled “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment” (hereinafter referred to as the “Nichols Memo”); and (3) the April 23, 2014 memorandum from Stephen D. Page titled “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions” (hereinafter referred to as “2010 SO2 Nonattainment Area Guidance”).

On March 31, 2015, KDAQ submitted a request for EPA to determine that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO2 NAAQS per EPA's “Clean Data Policy.” Subsequently, on February 22, 2016, KDAQ requested that EPA redesignate the Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour SO2 NAAQS. On November 21, 2016, EPA determined that the entire Area has attained the 2010 1-hour SO2 NAAQS as part of its final action redesignating the Ohio portion of the Area. EPA's evaluation indicates that the Kentucky portion of the Campbell-Clermont, KY-OH Area meets the requirements for redesignation as set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. As a result, EPA is proposing to take the five related actions summarized in section I of this notice.

As stated above, in accordance with the CAA, EPA proposes to: (1) Approve Kentucky's Subpart 1 RACM determination for the Kentucky portion of the Campbell-Clermont, KY-OH Area and incorporate it into the SIP; (2) approve the base year emissions inventory for the 2010 SO2 NAAQS for the Kentucky portion of the Area and incorporate it into the SIP; (3) approve Kentucky's March 31, 2015, request for a clean data determination; (4) approve the 2010 1-hour SO2 NAAQS maintenance plan for the Kentucky portion of the Area and incorporate it into the SIP; and (5) redesignate the Kentucky portion of the Area to attainment for the 2010 1-hour SO2 NAAQS.

EPA does not believe that Subpart 1 nonattainment planning requirements designed to provide for attainment, including RACM, are “applicable” for purposes of CAA section 107(d)(3)(E)(ii) once an area is attaining the NAAQS and, therefore, does not believe that these planning requirements must be approved into the SIP before EPA can redesignate an area to attainment. See, e.g., 57 FR 13498, 13564 (April 16, 1992); Calcagni Memo. However, the Sixth Circuit issued an opinion in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), that is inconsistent with this longstanding interpretation regarding section 107(d)(3)(E)(ii). In its decision, the Court vacated EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton nonattainment area to attainment for the 1997 Fine Particulate Matter (PM2.5) NAAQS because EPA had not yet approved Subpart 1 RACM for the Cincinnati Area into the Indiana and Ohio SIPs. The Court concluded that “a State seeking redesignation `shall provide for the implementation' of RACM/RACT [reasonably available control technology], even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. If the State has not done so, EPA cannot `fully approve' the area's SIP, and redesignation to attainment status is improper.” Sierra Club, 793 F.3d at 670.

EPA is bound by the Sixth Circuit's decision in Sierra Club v. EPA within the Court's jurisdiction.4 Although EPA continues to believe that Subpart 1 RACM is not an applicable requirement under section 107(d)(3)(E) for an area that has already attained the 2010 1-hour SO2 NAAQS, EPA is proposing to approve Kentucky's RACM determination into the SIP pursuant to the Court's decision.5

Subpart 1 requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.” See CAA section 172(c)(1). EPA has consistently interpreted this provision to require only implementation of potential RACM measures that could advance attainment.6 Thus, when an area is already attaining the standard, no additional RACM measures are required. EPA's interpretation that Subpart 1 requires only the implementation of RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit 7 and by the United States Court of Appeals for the D.C. Circuit.8

In its February 22, 2016, SIP revision, Kentucky determined that no additional control measures are necessary in the Area to satisfy the section 172(c)(1) RACM requirement. EPA is proposing to approve this determination on the basis that the Area has attained the 2010 1-hour SO2 NAAQS and, therefore, no emission reduction measures are necessary to satisfy Subpart 1 RACM. As noted above, EPA has determined that the Area has attained the 2010 1-hour SO2 NAAQS and is proposing to determine that the Area continues to attain the standard. See 81 FR 47144. Because the Area is attaining the standard, there are no emissions controls that could advance the attainment date; thus, no emissions controls are necessary to satisfy Subpart 1 RACM.

Additionally, Kentucky's Subpart 1 RACM determination is approvable on the basis that the SIP revision demonstrates that no additional reasonably available controls would have advanced the attainment date. In Kentucky's RACM analysis, the Commonwealth notes that the only large point source of SO2 emissions in the Area—the Walter C. Beckjord power plant—was permanently shut down and removed from service in 2014. The Beckjord Facility has been demonstrated to be the primary SO2 source that caused the monitored exceedances, and since the closure of the Beckjord Facility, there has been a significant monitored improvement in SO2 air quality (see Table 2 in section V.C, below). The closure results in a reduction of 90,835 tons per year (tpy) based on the Facility's 2011 emissions (representing emissions from the time period for which the design value for the Area was above the NAAQS) and a reduction of 32,602 tpy based on the Facility's 2014 emissions (representing emissions from a time period for which the design value was below the NAAQS) (see Tables 3-5 in section V.C, below). Because the only large point source of SO2 emissions in the Area is permanently shut down and because total point source SO2 emissions in the Kentucky portion of the Area were only approximately 0.8 tons per year in 2011, the Commonwealth concludes that there are no potential emission reduction measures that would advance attainment by one year or more. EPA has reviewed the RACM portion of Kentucky's February 22, 2016, SIP revision and preliminarily agrees with the Commonwealth's determination that it was not necessary to adopt or implement additional SO2 control measures in the Area to satisfy section 172(c)(1).

Section 172(c)(3) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in each nonattainment area. This inventory can be submitted for a year that contributed to the three-year design value used for the original nonattainment designation and should be consistent with the emissions inventory data requirements in 40 CFR part 51, subpart A.

Kentucky submitted a base year emissions inventory for 2011 to satisfy section 172(c)(3). This base year is one of the three years of ambient data used to designate the Area as a nonattainment area and therefore represents emissions associated with nonattainment conditions. The emissions inventory is based on data developed and submitted by Kentucky to EPA's 2011 National Emissions Inventory (NEI), and it contains data elements consistent with the detail required by 40 CFR part 51, subpart A. Kentucky's base year emissions inventory for its portion of the Area provides 2011 emissions data for SO2 for the following general source categories: electric generating unit (EGU) point, non-EGU point, area, non-road mobile, and on-road mobile. All base year emissions data are taken from the NEI with the exception of point source emissions which were obtained from Kentucky's Emission Inventory database and mobile emissions which were generated by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI). Projections were developed for each sector as follows:

• Area source emissions were compiled from the 2011 NEI and projections were developed by Kentucky. Kentucky developed its inventory according to the current EPA emissions inventory guidance for area sources.

• Mobile source emissions were calculated from MOVES2014b-produced emission factors. As performed by OKI, mobile source emission projections are based on the EPA MOVES model. The analysis is described in more detail in Appendix E of Kentucky's February 22, 2016, SIP submission. Kentucky developed its inventory according to the current EPA emissions inventory guidance for on-road mobile sources using MOVES version 2014.

• Non-EGU point source information was compiled from Kentucky's 2011 Emissions Inventory Database, while Ohio's EGU point source information was compiled from the 2011 data in the CAMD database. Projections were developed by Kentucky as described in Appendix C of Kentucky's February 22, 2016, SIP submission.

• Non-road emissions were compiled from the 2011 NEI and projections were developed by Kentucky.

• Biogenic emissions are negligible and are not included in these summaries.

A detailed discussion of the inventory development is located in Appendices C and E to Kentucky's February 22, 2016, SIP submittal which is provided in the docket for this proposed action. Table 1, below, provides a summary of the base year emissions inventory.

For the reasons discussed above, EPA has preliminarily determined that Kentucky's 2011 base year emissions inventory meets the requirements under CAA section 172(c)(3). Approval of Kentucky's redesignation request is contingent upon EPA's final approval of the base year emissions inventory for the 2010 1-hour SO2 NAAQS.

The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). The two primary methods for evaluating ambient air quality impacted by SO2 emissions are through dispersion modeling and air quality monitoring. For SO2, an area may in some circumstances be considered to be attaining the 2010 1-hour SO2 NAAQS if it meets the NAAQS as determined in accordance with 40 CFR 50.17 and Appendix T of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS based on monitoring, the 3-year average of the annual 99th percentile (fourth highest value) of 1-hour daily maximum concentrations measured at each monitor within an area must be less than or equal to 75 parts per billion (ppb). The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS).

As discussed in EPA's 2010 SO2 Nonattainment Area Guidance, two components are needed to support an attainment determination: (1) A review of representative air quality monitoring data, and (2) a further analysis, generally requiring air quality modeling, to demonstrate that the entire area is attaining the standard, based on current actual emissions or the fully implemented control strategy. In EPA's action redesignating the Ohio portion of the Area, EPA determined that the Area has attained the 1-hour SO2 NAAQS based on these two components. For EPA's full analysis underlying its final attainment determination, see 81 FR 47144, 47145-47 (July 20, 2016). As part of that analysis, EPA reviewed 2012-2015 SO2 monitoring data from the monitoring station in the Campbell-Clermont, KY-OH Area for the 2010 1-hour SO2 NAAQS and preliminary data for 2016. The 2012-2015 data have been quality-assured, are recorded in Aerometric Information Retrieval System (AIRS-AQS), and the 3-year design values for 2012-2014 and 2013-2015 are below the NAAQS. The fourth-highest 1-hour SO2 values at each monitor for 2012-2015, and the 3-year averages of these values (i.e., design values), are summarized in Table 2, below.

Preliminary monitoring data for the Area for 2016 does not indicate a violation of the NAAQS.9 EPA will not take final action to approve the redesignation if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. As discussed in more detail below, the Commonwealth has committed to continue monitoring in this Area in accordance with 40 CFR part 58.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Kentucky has met all applicable SIP requirements for the Kentucky portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Kentucky SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (NSR permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

In addition, EPA believes that other section 110(a)(2) elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110(a)(2) and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

EPA has reviewed Kentucky's SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. These requirements are statewide requirements that are not linked to the SO2 nonattainment status of the Area. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of Kentucky's SO2 redesignation request.

Title I, Part D, applicable SIP requirements. Subpart 1 of part D, comprised of CAA sections 171-179B, sets forth the basic nonattainment requirements applicable to all nonattainment areas, and subpart 5 of part D, which includes section 191 and 192 of the CAA, establishes additional plan deadline and attainment date requirements for SO2, nitrogen dioxide, and lead nonattainment areas. A thorough discussion of the requirements contained in sections 172(c) can be found in the General Preamble for Implementation of Title I (57 FR 13498).

Subpart 1 Section 172 Requirements. Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. As discussed in section V.A, above, EPA's longstanding interpretation of the attainment-related nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for RFP and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the Calcagni Memo. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, articulated with regard to the 2010 1-hour SO2 NAAQS in the 2010 SO2 NAA Guidance, which suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). However, as discussed above, EPA is proposing to approve Kentucky's RACM determination into the SIP in response to the Sixth Circuit's decision that section 172(c)(1) RACM is an applicable requirement under 107(d)(3)(E)(ii) and must be approved into the SIP before EPA can redesignate an area that is subject to section 172(c)(1) requirements.

Because attainment has been reached in the Area, the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress toward attainment is not relevant for purposes of redesignation. In addition, because the Area has attained the standard and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the NAAQS. Because attainment has been reached, no additional measures are needed to provide for attainment.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. As noted above, Kentucky submitted a 2011 base year emissions inventory for the Kentucky portion of the Area, and EPA is proposing to approve that inventory as satisfying the requirements of section 172(c)(3). Kentucky's section 172(c)(3) inventory must be approved before EPA can take final action to approve the Commonwealth's redesignation request for the Kentucky portion of the Area.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in the Nichols Memo. Kentucky has demonstrated that the Area will be able to maintain the NAAQS without part D NSR in effect, and therefore Kentucky need not have fully approved part D NSR programs prior to approval of the redesignation request. Kentucky's PSD program will become effective in Campbell County upon redesignation to attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes the Kentucky SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA.

EPA believes that it is reasonable to interpret the conformity SIP requirements 10 as not applying for purposes of evaluating the redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (upholding this interpretation) (6th Cir. 2001); See 60 FR 62748 (December 7, 1995). Furthermore, due to the relatively small, and decreasing, amounts of sulfur in gasoline and on-road diesel fuel, the EPA's transportation conformity rules provide that they do not apply to SO2 unless either the EPA Regional Administrator or the director of the state air agency has found that transportation-related emissions of SO2 as a precursor are a significant contributor to a fine particulate matter (PM2.5) nonattainment problem, or if the SIP has established an approved or adequate budget for such emissions as part of the RFP, attainment, or maintenance strategy. See 40 CFR 93.102(b)(1), (2)(v); 2010 SO2 Nonattainment Area Guidance. Neither of these conditions have been met; therefore, the EPA's transportation conformity rules do not apply to SO2 for the Area.

For these reasons, EPA proposes to find that Kentucky has satisfied all applicable requirements for purposes of redesignation of the Campbell-Clermont, KY-OH Area under section 110 and part D of title I of the CAA.

EPA has fully approved the Commonwealth's SIP for the Kentucky portion of the Campbell-Clermont, KY-OH Area under section 110(k) of the CAA for all requirements applicable for purposes of this proposed redesignation with the exception of the Subpart 1 RACM and emissions inventory requirements. In today's proposed action, EPA is proposing to approve the Commonwealth's Subpart 1 RACM determination and the Subpart 1 emissions inventory for the Kentucky portion of the Area into the Kentucky SIP.

As indicated above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. If EPA finalizes approval of the Commonwealth's Subpart 1 RACM determination and Subpart 1 emissions inventory, EPA has approved all part D requirements applicable under the 2010 1-hour SO2 NAAQS, as identified above, for purposes of this proposed redesignation pursuant to the Sixth Circuit's decision.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA has preliminarily determined that Kentucky has demonstrated that the observed air quality improvement in the Area is due to permanent and enforceable reductions in emissions primarily resulting from the permanent shutdown of the Beckjord Facility.

When EPA designated the Campbell-Clermont, KY-OH Area as a nonattainment area for the 2010 1-hour SO2 NAAQS, EPA determined that operations at the Beckjord Facility were the primary cause of the 2010 1-hour SO2 NAAQS violations in the Area. See 78 FR 47191.11 As mentioned above, operations at the Beckjord Facility ceased in 2014. Specifically, its six coal-fired EGUs were permanently shut down and removed from service by October 1, 2014, and its four oil-fired EGUs were permanently shut down and removed from service by the end of 2014.12 These units are no longer authorized to operate by the state of Ohio and cannot restart without new air permits. The shutdown reduced SO2 emissions in the Area by approximately 90,835 tpy (based on 2011 emissions) and resulted in a significant improvement in SO2 air quality. There are no other large point sources of SO2 emissions located in the Campbell-Clermont, KY-OH Area.

Because the Beckjord Facility which was the primary SO2 emissions source that caused the monitored exceedances is permanently shut down, and cannot reopen without applying for a new operating permit, EPA proposes to find that the improvement in air quality in the Campbell-Clermont, KY-OH Area is due to permanent and enforceable reductions in SO2 emissions.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. See CAA section 107(d)(3)(E)(iv). In conjunction with its request to redesignate the Kentucky portion of the Campbell-Clermont, KY-OH Area to attainment for the 2010 1-hour SO2 NAAQS, KDAQ submitted a SIP revision to provide for the maintenance of the 2010 1-hour SO2 NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA is proposing to determine that this maintenance plan meets the requirements for approval under section 175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2010 1-hour SO2 violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: the attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, EPA is proposing to determine that Kentucky's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Kentucky SIP.

On November 21, 2016, EPA determined that the Campbell-Clermont, KY-OH Area has attained the 2010 1-hour SO2 NAAQS based on quality-assured monitoring data for the 3-year period from 2013-2015. Kentucky began development of the attainment inventory by first generating a baseline emissions inventory for the Commonwealth's portion of the Campbell-Clermont, KY-OH Area. The Commonwealth selected 2011 as the base year and 2014 as the attainment emissions inventory year for developing a comprehensive emissions inventory for SO2. To evaluate maintenance through 2027 and satisfy the 10-year interval required in CAA section 175A, Kentucky prepared projected emissions inventories for 2017-2027. The emissions inventories are composed of the following general source categories: EGU point, non-EGU point, area, non-road mobile, and on-road mobile. The emissions inventories were developed consistent with EPA guidance and are summarized in Tables 3 through 5 of the following subsection discussing the maintenance demonstration. For additional information regarding inventory development, please see section V.B., above, and Appendices C and E to Kentucky's February 22, 2016, SIP submittal.

Maintenance of the SO2 standard is demonstrated either by showing that future emissions will not exceed the level of the attainment emissions inventory year or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. KDAQ determined that a modeling analysis of maximum concentration location was not warranted given the unique circumstances of this specific redesignation request. Therefore, Kentucky compared the final year of the maintenance plan (2027) to the attainment emissions inventory year (2014) and compared interim years to the attainment emissions inventory year to demonstrate continued maintenance of the 2010 1-hour SO2 standard. See Tables 3 through 6, below. After the shutdown of the Beckjord Facility in 2014, there are no significant point sources of SO2 emissions located in the Area.