Federal Register Vol. 82, No.75,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A330-200, A330-300, A340-200, and A340-300 series airplanes. The NPRM published in the Federal Register on October 25, 2016 (81 FR 73357) (“the NPRM”). The NPRM was prompted by a report of cracking at fastener holes located at a certain frame on the lower shell panel junction. The NPRM proposed to require repetitive inspections of certain fastener holes, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct cracking at frame 40 on the lower shell panel junction; such cracking could lead to reduced structural integrity of the fuselage.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0136, dated June 13, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330, A340-200, and A340-300 series airplanes. The MCAI states:

The compliance time ranges between 20,000 flight cycles or 65,400 flight hours and 20,800 flight cycles or 68,300 flight hours, depending on airplane utilization and configuration. The repetitive inspection interval ranges between 14,000 flight cycles or 95,200 flight hours and 24,600 flight cycles or 98,700 flight hours, depending on airplane configuration. 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-2016-9192.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the NPRM from a single commenter, and the FAA's response to that comment.

Delta Airlines (DAL) requested that we revise paragraphs (g), (g)(1), and (g)(2) of the proposed AD to refer to Airbus Service Bulletin A330-53-3215, Revision 02, dated November 23, 2016. DAL also asked that credit be given in paragraph (h)(1) of the proposed AD for previously accomplished actions using Airbus Service Bulletin A330-53-3215, Revision 01, dated April 17, 2014. DAL stated that if the Accomplishment Instructions of Airbus Service Bulletin A330-53-3215, Revision 01, dated April 17, 2014, are used, operators may incorrectly reference kit part numbers in their instructions and would then need to submit a request for approval of an alternative method of compliance for the replaced part.

We agree with the commenter's request to refer to Airbus Service Bulletin A330-53-3215, Revision 02, dated November 23, 2016. Airbus Service Bulletin A340-53-4215, Revision 02, dated November 23, 2016, has also been issued. No additional work is required by Airbus Service Bulletins A330-53-3215, Revision 02; and A340-53-4215, Revision 02, both dated November 23, 2016; the revised service information merely corrects typographical errors and contains minor editorial changes.

We have revised the Related Service Information under 1 CFR part 51 section of this final rule and paragraphs (g), (g)(1), and (g)(2) of this AD to refer to Airbus Service Bulletin A330-53-3215, Revision 02, dated November 23, 2016; and Airbus Service Bulletin A340-53-4215, Revision 02, dated November 23, 2016. We have also revised paragraph (h)(1) of this AD to provide credit for actions accomplished prior to the effective date of this AD using Airbus Service Bulletin A330-53-3215, Revision 01, dated April 17, 2014; and Airbus Service Bulletin A340-53-4215, Revision 01, dated April 17, 2014.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

We reviewed Airbus Service Bulletin A330-53-3215, Revision 02, dated November 23, 2016; and Airbus Service Bulletin A340-53-4215, Revision 02, dated November 23, 2016. The service information describes procedures for repetitive rototest inspections of certain fastener holes, and related investigative and corrective actions if necessary. These documents are distinct since they apply to different airplane models. 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.

We estimate that this AD affects 41 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs that are required based on the results of the required inspection. We have no way of determining the number of aircraft that might need these repairs:

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

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under 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 amends 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 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 establishes Class E en route airspace at Denver Air Route Traffic Control Center, Denver, CO to ensure controlled airspace exists in those areas where the Federal airway structure is inadequate.

On November 16, 2016, the FAA published in the Federal Register (81 FR 80620) Docket FAA-2016-9286 a notice of proposed rulemaking to establish Class E en route airspace extending upward from 1,200 feet above the surface at Denver, CO. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6006 of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends 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 document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E en route airspace extending upward from 1,200 feet above the surface at Denver, CO, within the area controlled by the Denver Air Route Traffic Control Center, Denver, CO. This airspace is established to support en route IFR operations where the airway structure is inadequate.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this 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.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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 modifies the air traffic service route structure in the western United States to maintain the efficient flow of air traffic.

On January 5, 2017, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (82 FR 1279); Docket No. FAA-2016-9264, to amend three jet routes (J-58, J-80, J-94) and four VOR Federal airways (V-87, V-113, V-195, V-244); remove two VOR Federal airways (V-109, V-585); and establish four (T-298, T-329, T-331, and T-333) and modify four (T-257, T-259, T-261, T-263) RNAV T-routes in the western United States. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

This document amends 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 document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The NPRM proposed to establish VOR Federal airway, V-244. Due to additional coordination required for low altitude routes, V-244 requires additional review and will be finalized at a later date.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 to amend jet routes J-58, J-80, J-94, and VOR Federal airways V-87, V-113, V-195; remove VOR Federal airways V-109, V-585; establish RNAV T-routes T-298, T-329, T-331, and T-333; and modify RNAV T-routes T-257, T-259, T-261, T-263 in the western United States due to the scheduled decommissioning of the Manteca and Maxwell VOR facilities. The routes are outlined below.

J-58: J-58 currently extends between Oakland, CA (OAK) and Harvey, LA (HRV). The FAA removes the segment of the route west of Coaldale, NV (OAL) from Oakland to Coaldale via Manteca. The unaffected portion of the existing route will remain as charted.

J-80: J-80 currently extends between Oakland, CA (OAK) and Bellaire, OH (AIR). The FAA removes the segment of the route west of Coaldale, NV (OAL) from Oakland to Coaldale via Manteca. The unaffected portion of the existing route will remain as charted.

J-94: J-94 currently extends between Oakland, CA (OAK) and Flint, MI (FNT). The FAA removes the segment of the route west of Mustang, NV (FMG) from Oakland to Mustang. The unaffected portion of the existing route will remain as charted.

V-87: V-87 currently extends between Panoche, CA (PXN) and Red Bluff, CA (RBL). The FAA amends the route by ending the route at Scaggs Island, CA (SGD), eliminating the segment north of Scaggs Island, CA (SGD) to Red Bluff, CA. The unaffected portion of the existing route will remain as charted.

V-109: V-109 currently extends from Panoche, CA to Oakland CA. The FAA removes this route.

V-113: V-113 currently extends between Morro Bay, CA (MQO) and Lewistown, MT (LWT). The FAA removes the Manteca, CA segment between Panoche, CA (PXN) and Linden, CA (LIN). The unaffected portions of the existing route will remain as charted in the two remaining segments.

V-195: V-195 currently extends between Manteca, CA (ECA) and Fortuna, CA, (FOT). The FAA removes the part of the route east of Oakland, CA (OAK) from Manteca to Oakland. The unaffected portion of the existing route will remain as charted.

V-585: V-585 currently extends from Clovis, CA to Sacramento, CA. The FAA removes this route.

T-257: T-257 currently extends between Big Sur, CA (BSR) to Point Reyes, CA (PYE). The FAA amends the route from Ventura, CA (VTU) to Tatoosh, WA (TOU).

T-259: T-259 currently extends between San Jose, CA (SJC) to Sacramento, CA (SAC). The FAA amends the route from Lake Hughes, CA (LHS) to Ely, NV (ELY).

T-261: T-261 currently extends between Woodside, CA (OSI) and the ALTAM waypoint. The FAA amends the route from Santa Catalina, CA (SXC) to JSTEN waypoint.

T-263: T-263 currently extends between the SUNOL waypoint and Scaggs Island, CA (SGD). The FAA amends the route to begin at Fillmore, CA (FIM) to ELWHA waypoint.

T-298: The FAA establishes T-298 between Oakland, CA (OAK) and Crazy Woman, WY (CZI).

T-329: The FAA establishes T-329 between Morro Bay, CA (MQO) and NACKI, CA waypoint.

T-331: The FAA establishes T-331 between NTELL, CA waypoint and FONIA, ND FIX.

T-333: The FAA establishes T-333 between KLIDE, CA fix and TIPRE, CA waypoint.

All radials in the regulatory text route descriptions below are stated in True degrees.

Jet routes are published in paragraph 2004, VOR Federal airways are published in paragraph 6010(a), United States Area Navigation Routes (T-Routes) are published in paragraph 6011, respectively, 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 Jet routes, VOR Federal airways and United States Area Navigation Routes (T-Routes) listed in this document will be subsequently published in the Order.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action of modifying three jet routes and three VOR Federal airways, removing two VOR Federal Airway routes, and establishing four and modifying four low altitude Area Navigation (RNAV) routes (T-routes) qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F—Environmental Impacts: Policies and Procedures, Paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). This action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

On January 23, 2017, Charcot-Marie-Tooth Association of Trappe, MD notified the Coast Guard that it will be conducting the swim portion of the Oxford Biathlon from 9:30 a.m. until 10:30 a.m. on June 10, 2017. The event will be conducted on a designated 1,300-meter course that starts at the ferry dock at Bellevue, MD and finishes at the Tred Avon Yacht Club at Oxford, MD. On February 27, 2017, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation; Tred Avon River, between Bellevue, MD and Oxford, MD” in the Federal Register (82 FR 11867). In the NPRM, we stated the purpose of the rulemaking and invited comments on the proposed regulatory action related to this swim event. During the comment period that ended March 29, 2017, we received 1 comment. No public meeting was requested, and none was held.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The COTP Maryland-National Capital Region has determined that potential hazards associated with the swim event on June 10, 2017, will be a safety concern for anyone intending to participate in this event or for vessels that operate within specified waters of the Tred Avon River between Bellevue, MD and Oxford, MD. The purpose of this rule is to protect event participants, spectators and transiting vessels on certain waters of the Tred Avon River before, during, and after the scheduled event.

As noted above, we received 1 comment on our NPRM published on February 27, 2017. There are no changes in the regulatory text of this rule from what was proposed in the NPRM.

The commenter, an individual, stated support for the regulated area, that it's necessary because the concentration of swimmers in this case increases the likelihood of a boating accident. Additionally, the consequences would be a slight inconvenience for a small number of recreational boaters and nothing involving significant economic trade on the waterway.

The Coast Guard agrees that this waterway restriction is necessary, however, should remain limited in scope and duration. The Coast Guard carefully considered its actions to enhance safety to event participants while minimizing restrictions on mariners on the Tred Avon River. For this event, enough notice has been provided for persons to schedule, coordinate and adjust their voyages, and the Coast Guard will only enforce the regulated area during the enforcement period.

This rule establishes special local regulations from 8:30 a.m. until 11:30 a.m. on June 10, 2017, and if necessary, due to inclement weather, from 8:30 a.m. until 11:30 a.m. on June 11, 2017. The regulated area will include all navigable waters of the Tred Avon River, from shoreline to shoreline, within an area bounded on the east by a line drawn from latitude 38°42′25″ N., longitude 076°10′45″ W., thence south to latitude 38°41′37″ N., longitude 076°10′26″ W., and bounded on the west by a line drawn from latitude 38°41′58″ N., longitude 076°11′04″ W., thence south to latitude 38°41′25″ N., longitude 076°10′49″ W., thence east to latitude 38°41′25″ N., longitude 076°10′30″ W., located at Oxford, MD. The duration of the regulated area is intended to ensure the safety of event participants and vessels within the specified navigable waters before, during, and after the event, currently scheduled to begin at 9:30 a.m. and last until 10:30 a.m. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP Maryland-National Capital Region or the designated Coast Guard Patrol Commander, except for Oxford Biathlon participants.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

E.O.s 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has not reviewed it.

As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs'” (February 2, 2017).

This regulatory action determination is based on the size and duration of the regulated area, which would impact a small designated area of the Tred Avon River for three hours. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area. Moreover, the rule will allow vessel operators to request permission to enter the regulated area for the purpose of safely transit the regulated area if deemed safe to do so by the COTP or designated Coast Guard Patrol Commander.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under E.O. 13132, Federalism, if it has 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. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.

Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that may negatively impact the safety of waterway users and shore side activities within the event area. This category of marine event water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce the Rockets for School Rocket Launch safety zone listed as item (c)(3) in Table 165.929 of 33 CFR 165.929. Section 165.929 lists many annual events requiring safety zones in the Captain of the Port Lake Michigan zone. This safety zone will encompass all waters of the Sheboygan Harbor within the arc of a circle with a 1500-yard radius from a center point launch position at 43°44.914′ N., 087°41.869′ W. (NAD 83). As specified in 33 CFR 165.929, all vessels must obtain permission from the Captain of the Port Lake Michigan or a designated representative to enter, move within, or exit the safety zone when it is enforced. Vessels and persons granted permission to enter the safety zone must obey all lawful orders or directions of the Captain of the Port Lake Michigan or a designated representative.

This document is issued under authority of 33 CFR 165.929, Safety Zones; Annual events requiring safety zones in the Captain of the Port Lake Michigan zone, and 5 U.S.C. 552(a). In addition to this publication in the Federal Register, the Coast Guard plans to provide the maritime community with advance notification for the enforcement of this zone via Broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port Lake Michigan or a representative may be contacted via Channel 16, VHF-FM.

Background:

The Inflation Adjustment Act (28 U.S.C. 2461 note) provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to each CMP in the Federal Register on October 2, 2012 (77 FR 60047), and those adjustments became effective on the date of publication.

The 2015 Act (section 701 of Pub. L. 114-74) amended the Inflation Adjustment Act to improve the effectiveness of CMPs and to maintain their deterrent effect.

The 2015 Act requires agencies to: (1) Adjust the level of CMPs with an initial “catch-up” adjustment through an IFR; and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percentage change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U.1

The Department published an IFR with the initial “catch-up” penalty adjustment amounts on August 1, 2016 (81 FR 50321). These adjustments are currently in effect and apply to all CMPs covered by the Inflation Adjustment Act. We did not receive any public comments on this IFR.

A CMP is defined in the Inflation Adjustment Act as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in OMB Memorandum M-16-06 (February 24, 2016), and is not subject to the exercise of discretion by the Secretary of Education (Secretary). Under the 2015 Act, the Department was required to use, as the baseline for adjusting the CMPs in the IFR, the CMP amounts as they were most recently established or adjusted under a provision of law other than the Inflation Adjustment Act. In accordance with the 2015 Act, we did not use the amounts set out in 34 CFR part 36 in 2012 in the formula used in the IFR to adjust for inflation because those CMP amounts were updated pursuant to the Inflation Adjustment Act.2 Instead, the baselines we used in the IFR were the amounts set out most recently in each of the statutes that provide for civil penalties. Using these statutory CMPs, we determined which year those amounts were originally enacted by Congress (or the year the statutory amounts were last amended by the statute that established the penalty) and used the annual inflation adjustment multiplier corresponding to that year from Table A in OMB Memorandum M-16-06. We then rounded the number to the nearest dollar and checked, as required by the Inflation Adjustment Act, to see if that adjusted amount exceeded 150 percent of the CMP amount that was established under 34 CFR part 36, and in effect on November 2, 2015. If any of the amounts exceeded 150 percent, we were required to use the lesser amount (the 150 percent amount). All of the adjusted amounts were less than 150 percent so we did not have to replace any of the amounts we calculated using the multiplier from Table A of OMB Memorandum M-16-06 with the lesser amount.

In these final regulations, we adjust each CMP amount provided in the IFR by a factor of 1.01636, as directed by OMB Memorandum M-17-11.

Effective Dates:

The precise penalty amount that will apply to violations occurring before April 20, 2017, the effective date of this final rule, depends on when the violation occurred and also when we assessed the penalty for the violation. For all violations occurring on or before November 2, 2015, the applicable penalty amount is the amount set forth in 34 CFR 36.2 prior to August 1, 2016 (the IFR publication date). For violations occurring after November 2, 2015, in general, there are three potential amounts that could apply: (1) The amount as set forth in 34 CFR 36.2 before August 1, 2016; 3 (2) the amount set forth in 34 CFR 36.2 after publication of the IFR on August 1, 2016; or (3) the amount set forth in 34 CFR 36.2 through this final rule. The following chart shows which amount applies based on the assessment date for violations after November 2, 2015:

The following analysis calculates new CMPs for penalty statutes in the order in which they appear in 34 CFR 36.2. The 2015 Act provides that any increase to an agency's CMPs applies only to CMPs that are assessed after the effective date of the adjustments, including those whose associated violation predated such increase. These regulations are effective April 20, 2017. Therefore, the adjustments to the Department's CMPs made by these final regulations apply only to violations that are assessed after April 20, 2017.

Statute: 20 U.S.C. 1015(c)(5).

Current Regulations: The CMP for 20 U.S.C. 1015(c)(5) (Section 131(c)(5) of the Higher Education Act of 1965, as amended (HEA)), as last set out in statute in 1998 (Pub. L. 105-244, title I, § 101(a), Oct. 7, 1998, 112 Stat. 1602), is a fine of up to $25,000 for failure by an institution of higher education (IHE) to provide information on the cost of higher education to the Commissioner of Education Statistics. In the IFR, we increased this amount to $36,256.

New Regulations: The new penalty for this section is $36,849.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $36,256 × 1.01636 = $36,849.15, which makes the adjusted penalty $36,849, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1022d(a)(3).

Current Regulations: The CMP for 20 U.S.C. 1022d(a)(3) (Section 205(a)(3) of the HEA), as last set out in statute in 2008 (Pub. L. 110-315, title II, § 201(2), Aug. 14, 2008, 122 Stat. 3147), provides for a fine of up to $27,500 for failure by an IHE to provide information to the State and the public regarding its teacher-preparation programs. In the IFR, we increased this amount to $30,200.

New Regulations: The new penalty for this section is $30,694.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $30,200 × 1.01636 = $30,694.07, which makes the adjusted penalty $30,694, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1082(g).

Current Regulations: The CMP for 20 U.S.C. 1082(g) (Section 432(g) of the HEA), as last set out in statute in 1986 (Pub. L. 99-498, title IV, § 402(a), Oct. 17, 1986, 100 Stat. 1401), provides for a fine of up to $25,000 for violations by lenders and guaranty agencies of Title IV of the HEA, which authorizes the Federal Family Education Loan Program. In the IFR, we increased this amount to $53,907.

New Regulations: The new penalty for this section is $54,789.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $53,907 × 1.01636 = $54,788.92, which makes the adjusted penalty $54,789, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1094(c)(3)(B).

Current Regulations: The CMP for 20 U.S.C. 1094(c)(3)(B) (Section 487(c)(3)(B) of the HEA), as set out in statute in 1986 (Pub. L. 99-498, title IV, § 407(a), Oct. 17, 1986, 100 Stat. 1488), provides for a fine of up to $25,000 for an IHE's violation of Title IV of the HEA or its implementing regulations. Title IV authorizes various programs of student financial assistance. In the IFR, we increased this amount to $53,907.

New Regulations: The new penalty for this section is $54,789.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $53,907 × 1.01636 = $54,788.92, which makes the adjusted penalty $54,789, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1228c(c)(2)(E).

Current Regulations: The CMP for 20 U.S.C. 1228c(c)(2)(E) (Section 429 of the General Education Provisions Act), as set out in statute in 1994 (Pub. L. 103-382, title II, § 238, Oct. 20, 1994, 108 Stat. 3918), provides for a fine of up to $1,000 for an educational organization's failure to disclose certain information to minor students and their parents. In the IFR, we increased this amount to $1,591.

New Regulations: The new penalty for this section is $1,617.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $1,591 × 1.01636 = $1,617.03, which makes the adjusted penalty $1,617, when rounded to the nearest dollar.

Statute: 31 U.S.C. 1352(c)(1) and (c)(2)(A).

Current Regulations: The CMPs for 31 U.S.C. 1352(c)(1) and (c)(2)(A), as set out in statute in 1989, provide for a fine of $10,000 to $100,000 for recipients of Government grants, contracts, etc. that improperly lobby Congress or the Executive Branch with respect to the award of Government grants and contracts. In the IFR, we increased these amounts to $18,936 to $189,361.

New Regulations: The new penalties for these sections are $19,246 to $192,459.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new minimum penalty is calculated as follows: $18,936 × 1.01636 = $19,245.79, which makes the adjusted penalty $19,246, when rounded to the nearest dollar. The new maximum penalty is calculated as follows: $189,361.00 × 1.01636 = $192,458.95, which makes the adjusted penalty $192,459, when rounded to the nearest dollar.

Statute: 31 U.S.C. 3802(a)(1) and (a)(2).

Current Regulations: The CMPs for 31 U.S.C. 3802(a)(1) and (a)(2), as set out in statute in 1986 (Pub. L. 99-509, title VI, § 6103(a), Oct. 21, 1986, 100 Stat. 1937), provide for a fine of up to $5,000 for false claims and statements made to the Government. In the IFR, we increased this amount to $10,781.

New Regulations: The new penalty for this section is $10,957.

Reason: Using the multiplier of 1.01636 from OMB Memorandum M-17-11, the new penalty is calculated as follows: $10,781 × 1.01636 = $10,957.38, which makes the adjusted penalty $10,957, when rounded to the nearest dollar.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a significant regulatory action as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities in a material way (also referred to as “economically significant” regulations);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

Based on the number and amount of penalties imposed under the CMPs amended in these final regulations, we have determined that this regulatory action will have none of the economic impacts described under the Executive order. These final regulations are required by statute, the adjusted CMPs are not at the Secretary's discretion, and, accordingly, these final regulations do not have any of the policy impacts described under the Executive order. Because these final regulations are not a significant regulatory action, they are not subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations as required by statute. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

Under Executive Order 13771, if the Department proposes for notice and comment or otherwise promulgates a new regulation that is a significant regulatory action under Executive Order 12866, it must identify two existing regulations for elimination. For Fiscal Year 2017, any new incremental costs associated with the new regulation must be fully offset by the elimination of existing costs through the repeal of at least two regulations. These final regulations are not a significant regulatory action. Therefore, the requirements of Executive Order 13771 do not apply.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking here as unnecessary.

Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983).

These regulations merely implement the statutory mandate to adjust CMPs for inflation. The regulations reflect administrative computations performed by the Department as prescribed by the statute, and the Secretary has no discretion in determining the new penalties.

The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations merely implement non-discretionary administrative computations, there is good cause to make them effective on the day they are published.

The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. The formula for the amount of the inflation adjustments is prescribed by statute and is not subject to the Secretary's discretion. These CMPs are infrequently imposed by the Secretary, and the regulations do not involve any special considerations that might affect the imposition of CMPs on small entities.

These regulations do not contain any information collection requirements.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Based on our own review, we have determined that these regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends part 36 of title 34 of the Code of Federal Regulations as follows:

I. Introduction

On November 23, 2016, the Copyright Royalty Judges (Judges) published a proposed rule in the Federal Register seeking comments on proposed amendments relating to an automated system, designated “eCRB.” The rules address electronic filing of documents and related matters such as the form and content of documents that are filed with the Judges.1 The Judges received comments from the following interested parties: The Commercial Television Claimants (CTV); 2 Independent Producers Group and Multigroup Claimants (IPG); Joint Sports Claimants (JSC); 3 the Music Community Participants (Music Community); 4 the Performing Rights Organizations (Music PROs); 5 the Program Suppliers; 6 and the Settling Devotional Claimants (SDC).7 All interested parties supported the Judges' decision to implement an electronic filing system and to adopt rules concerning the use of that system, though most recommended some changes to the proposed rules.

The Judges address the comments on a section-by-section basis. The Judges will adopt without change those sections that no interested party commented on.8

The Music Community recommended that the proposed rule be modified so that filers would not be required to put a footer on the first page of a filed document, noting that the first page includes a caption that conveys the same information that would be in the footer. Comments of the Music Community Participants (Music Community Comments) at 9. The Judges find this recommendation to be reasonable and will adopt it in the final rule.

Commenter Music PROs recommended that the requirement for a footer be eliminated from the rules. In the view of the Music PROs, eCRB should be designed to add a footer automatically. Comments of Performing Rights Organizations (Music PRO Comments) at 2-3.

eCRB will add a stamp to the first page of each filed document that includes, inter alia, the date and time the document was filed. It will not add a footer to each page, however. While the Judges may revisit this design choice in a future revision of the system, filers will be required to add footers to their documents for the time being. The Judges note that the burden of adding footers to documents created in a word processing program is minimal. However, the Music PROs' concern is well-taken that adding footers to some document exhibits (e.g., exhibits that are reproductions of paper documents) might not be technologically feasible. The Judges will adopt language limiting the application of the requirement for including footers on exhibits to the extent it is technologically feasible to do so using software available to the general public.

The Music PROs object to this provision's requirement that exhibits or attachments to documents reflect the docket number of the proceeding and that the pages are numbered appropriately, opining that “[m]ost if not all electronic filing systems automatically create a legend on each page of a filed document. . . .” Music PRO Comments at 3. eCRB will not create a legend on each page of a filed document. Consequently, the Judges will retain the requirement in the final rule. As discussed above, however, the Judges recognize that in certain instances (e.g., when attachments or exhibits are reproductions of paper documents) there may be technological impediments to adding footers to an attachment or exhibit.9 The Judges will, therefore, modify the final rule to limit the application of the requirement for including footers on attachments or exhibits to the extent it is technologically feasible to do so using readily available software.

The Music Community raised a similar concern about adding footers to “exhibits in non-traditional formats” such as non-PDF files, and recommended that the Judges adopt an exception. Music Community Comments at 9. The Judges acknowledge this concern, and believe that it is addressed by the modification to this provision that the Music PROs proposed and the Judges adopted.

It has also come to the Judges' attention that the phrase “clear black image” in this section may cause confusion in light of the requirement in section 350.3(b)(5) to scan exhibits in color. The Judges have modified the provision to clarify that, as with electronic copies of exhibits, any document that uses color to convey information or enhance readability must be reproduced in color.

As proposed, section 350.3(b)(2) requires all pleadings and documents to be filed in Portable Document Format (PDF), with the exception of proposed orders. The proposed rule also permits filers to provide certain documents in their native electronic formats.

The Music Community noted that it is unclear whether the second two sentences of this section are intended to be exceptions from the requirement for PDF files, or to permit filers to provide native files in addition to PDF versions of those files. See id. at 10. They pointed out that, for audio and video files, conversion to PDF is impossible. See id. In addition, the Music Community expressed concern that the proposed language would prohibit filers from providing the Copyright Royalty Board with the full range of electronic materials that could potentially be provided as exhibits in future filings. See id. They recommend revising the proposed section “to extend it to the full range of file types that cannot usefully be provided in PDF format and to state clearly that such files do not need to be delivered in PDF format.” Id.

The Judges' intent in drafting the proposed provision was to require filers to convert to the PDF file format any document that can be converted legibly, and to give filers the option of also providing those documents in their native format if doing so would assist the Judges. The Judges also intended to exclude from the requirement for PDF files those files (such as audio and audiovisual files) that cannot be converted to PDF.

The Judges agree with Music Community that the proposed provision requires clarification as to when filing documents in their native form is to be in lieu of, or in addition to filing a PDF file. The Judges have modified the final rule accordingly.10

In addition, the Judges recognize that it would be helpful to filers if the provision gave guidance as to which specific file formats the system is able to accept. However, this is likely to change over time as technology progresses. Consequently, apart from PDF and Word format, the regulations will not specify particular file types, and will refer to “audio,” “video,” and similar generic file formats. While the system will accept a wide variety of file formats as exhibits to pleadings or as hearing exhibits, the Judges caution that they might not have software to render and view all file types.

The Program Suppliers noted that the rule should provide guidance to filers as to the maximum file size that the eCRB system can accept. See Program Suppliers Comments at 2. The Judges agree with this comment and, after consulting with the system developers, have modified section 350.3(b)(2) to include a maximum allowable file size. The Judges note, however, that this provision does not override any applicable page or word limit. Nor is this a guarantee that filers will be able to upload files at or near the maximum allowable file size, given the multitude of factors that may affect a transmission across the Internet before it is received by eCRB.

The Program Suppliers also noted that proposed section 350.3(b)(2) does not “provide guidance as to whether exhibits and attachments must be submitted as filings separate from the principal document.” Id. The eCRB system will be able to accept multiple files (e.g., a motion and exhibits) in a single filing. As the system is currently under development, the Judges can provide no further detail at this time. The eCRB documentation will provide further details about the filing process, and the Judges will supplement that information, either with informal guidance posted on the CRB Web site, or additional regulations, as the need arises.

Proposed section 350.3(b)(3) requires parties filing or responding to motions to provide a proposed order as a Word document. The Settling Devotional Claimants (SDC) suggest that, as to a party responding to a motion, the requirement be limited to cases where the responding party is seeking alternative relief, rather than merely seeking denial of the motion. Comments of the Settling Devotional Claimants (SDC Comments) at 2. IPG recommend that the requirement for a proposed order be dispensed with entirely. Comments of Independent Producers Group and Multigroup Claimants (IPG Comments) at 1. IPG argues that “more often than not it is impossible to anticipate what the adjudicating entity will want the final order to say with specificity.” Id.

The Judges find a party's proposed order to be a useful starting point for drafting an order, even in circumstances in which the Judges' resolution of the motion is not precisely what the moving party or the responding party anticipated. Consequently, the Judges will retain the requirement for a moving party to file a proposed order in the final rule. The Judges agree with the SDC that there is little utility in a proposed order that merely denies the relief sought by the moving party. The Judges have modified this provision to require responding parties to file a proposed order when they seek alternative relief, and have relocated the requirement to section 350.4.

Proposed section 305.3(b)(5) seeks to ensure that scanned exhibits are as useful as possible to the Judges by requiring that (1) they are scanned at an appropriate resolution; (2) they are rendered searchable; and (3) any exhibits that use color to convey information are scanned in color. The Music PROs expressed concern that rendering scanned exhibits searchable is not always technically feasible. See PRO Comments at 3. Noting the difficulties that a filer might encounter when, for example, an original contains text that is too small or too blurred to be “read” by optical character recognition (OCR) software, the Music PROs find that “an unqualified requirement that all scanned documents be `searchable' poses a technical challenge and places parties at risk of violating the rules if a given document cannot readily be made searchable.” Id. at 3-4. The Music PROs recommend limiting the requirement “to the extent technologically feasible through software programs available to the general public.” Id. No other commenter commented on this provision.

The Judges find that the Music PROs' concern is unfounded. The Judges recognize that OCR software is not perfect, and that it might do a poor job of extracting text from certain documents. The draft provision does not require perfection; it does, however, require that filers use OCR functionality that is available to them to render searchable any text that it is capable of rendering. OCR functionality is broadly available, either as stand-alone applications, built into commercially-available software for creating and editing PDF files, or embedded into scanner/copier hardware. Nevertheless, it has been the Judges' experience that parties frequently submit scanned documents without processing them through OCR software, shifting the burden onto the Judges and their staff to process the documents into a usable form. The proposed provision is intended to end this practice. The Judges will adopt the provision as drafted.

The Music PROs objected to this provision's requirement that electronic documents include bookmarks as an “unwarranted” burden. Id. at 4. They recommend that the proposed rule be eliminated or limited to documents exceeding 20 pages in length. No other commenter objected to this provision.

As with the other provisions of proposed section 350.3(b), proposed section 350.3(b)(6) seeks to ensure that documents submitted to the CRB in electronic form are at least as useful as their paper equivalents. It was proposed to address problems that the Judges frequently have encountered in the past. Electronic documents that contain no bookmarks are more difficult to navigate—particularly when accessed on a mobile device from the bench. The Judges find the Music PROs objection concerning “burden” to be outweighed by the Judges' need for useful electronic documents. The Judges will adopt the proposed rule as drafted.

The Music Community expressed concern that this proposed rule, together with proposed sections 350.5(d) and (e), is undesirable from the perspective of information security. See Music Community Comments at 10-11. These three provisions address the issue of how counsel must sign documents they submit using eCRB. Section 350.3(b)(8) eliminates the need for a manual (i.e., “wet”) signature on an electronically-filed document. Instead, the document must bear a signature line identifying the person responsible for signing the document, and that name must match the name of the person whose eCRB account is used to file the document. Section 350.5(e) specifies that logging onto an eCRB account and submitting a document constitutes the signature of the account holder (i.e., the person to whom the eCRB login password was assigned) and imposes on the account holder the ethical obligations associated with his or her signature. Section 350.5(d) states the general rule that only the account holder may log in to his or her account. It creates an exception, however, that permits an attorney to authorize another employee or agent of the attorney's law firm to use his or her password to log in and file documents. That provision further states that the account holder remains responsible for any documents filed using that account.

The Music Community correctly discerned that the purpose of the exception in section 350.5(d) is to accommodate the practice in some firms of requiring the responsible partner to sign litigation documents, while delegating the task of carrying out the electronic filing to others within the firm. See id. While the Music Community supports this accommodation, they “believe it would be preferable to issue eCRB passwords liberally to persons associated with a firm appearing in a proceeding, and allow filings to be uploaded by an eCRB user other than the signing attorney, so long as the signer and uploader are part of the same firm.” Id. at 11.

Sections 350.3(b)(8), 350.5(d) and 350.5(e) seek to address two aspects of the issue of signatures on electronic documents: Ready identification of the responsible party, and a manifestation of the responsible party's consent to filing the document. The Music Community's recommendation addresses the first aspect, but not the second. Their proposal would identify the responsible party on the signature line of the document. But an entirely different person would manifest his or her consent to the filing by using a separate account and password.

The Judges find that the provision as proposed strikes an appropriate balance among information security needs, the Judges' requirement for a manifestation of assent by the responsible party, and the flexibility that law firms desire. With one exception, the Judges will adopt these provisions as proposed.

In the course of developing the eCRB system it has come to the Judges' attention that, by placing a “filed” stamp on the first page of a filed document, the system will alter the document and thus invalidate any verifiable digital signature. Consequently, the Judges have deleted the final sentence of proposed section 350.3(b)(8), which would have permitted parties to sign documents with a verifiable electronic signature if they had the capability of doing so.

The SDC, IPG, the Music PROs, and the Program Suppliers all commented on the Judges' proposal to impose page limits on parties filing motions, responses, and replies. IPG opposed the proposal, arguing that “strict page limits present a problem when dealing with certain levels of complexity” and “can prejudice a party with a valid, but complex, point to make . . . .” IPG Comments at 1. No other commenter opposed the imposition of page limits, and the SDC supported them in principle. See SDC Comments at 2. Particularly in light of the fact that the proposed regulation expressly states that a party can seek an enlargement of the page limitations by motion, the Judges do not find the imposition of page limits to be an unwarranted burden. The Judges find that the imposition of reasonable page limits is desirable from the standpoint of administrative efficiency and will adopt them in the final rule.

The SDC, the Music PROs and the Program Suppliers each seek clarification of the language of section 305.3(c). The SDC state that the proposed rule “creates and ambiguity if the motion is more than 20 pages and but less than 5,000 words or vice versa,” and recommend that the Judges revise the rule to eliminate the ambiguity. Id. The Music PROs state that the phrase “exclusive of exhibits, proof of delivery, and the like” is ambiguous. Music PROs Comments at 4. The Music PROs and the Program suppliers both recommended that the Judges state with greater particularity the material that does not count against the page limit. See id.; Program Suppliers Comments at 3. The Judges find these recommendations to be reasonable and will adopt them in the final rule.

The Program Suppliers also recommended that “the Judges modify the proposed rule so that if a page limit extension is granted as to a motion or opposition, that same page limit expansion will automatically apply to any responsive pleadings . . . .” Id. The Judges find the Program Suppliers' recommendation to be fair and reasonable and will adopt it in the final rule.

Finally, the Program Suppliers argued that the Judges should expand the proposed page limits if they adopt a mandatory form for motions as proposed in section 350.4. See Program Suppliers Comments at 3. The Judges note that the proposed page limits are longer than most of the pleadings that the Judges currently receive. Also, as discussed below, the Judges have decided not to adopt a mandatory form for motions and responsive pleadings at this time. Moreover, the proposed provision expressly permits parties to seek an enlargement of the page limitations. The Judges find that their proposed page limits are sufficiently generous and that the Program Suppliers' recommendation is unnecessary. The Judges will not adopt it.

The SDC, IPG, the Music Community, the Music PROs, and the Program suppliers commented on this provision. Apart from the Program Suppliers, all who commented on this provision opposed it.

The SDC observed that “the format requirement appears more appropriate for appellate level briefs” and opined that, in some cases, “the required format would enlarge documents without making it any clearer.” SDC Comments at 2. The SDC recommended that the Judges retain the portion of section 350.4 that sets forth the required content, but strike the language “and conform to the following format.” Id. at 3.

IPG viewed the requirement for mandatory subsections in pleadings as “unnecessary” because “the parties have historically demonstrated an ability to adequately address each of these topics in past briefings.” IPG Comments at 1. Like the SDC, IPG opined that the proposed mandatory format would increase the length of submissions. See id.

The Music Community expressed confusion about whether the proposal was intended to apply to motions and replies (it was) and whether it was intended to require separate sections in filings to address the matters identified in the various subsections of section 350.4 (it was). Music Community Comments at 12. The Music Community offered the Judges the following tidbit of advice: “To obtain documents written as they want, the Judges may wish to make their intentions in these regards clearer.” Id. Substantively, the Music Community argued that “the proposed rule indicate[s] a format and level of formality that seems appropriate for certain documents . . . but not others” and recommended that the Judges “provide guidance for the preparation of documents that is outside the rules or drafted in less mandatory terms . . . .” Id. at 12-13.

The Music PROs also expressed confusion as to “whether this section requires that all filings must always include these specific five sections within a pleading, as opposed to, for example, merely requiring the inclusion of the content specified.” Music PROs Comments at 5. They opine that “the content and ordering of these sections is, in some respects, inconsistent with the format typical of motions and responsive briefs in filings made in proceedings before the Judges” and could “impair the clear presentation of motions and responsive pleadings.” Id. at 4-5. The Music PROs recommend that the provision either be deleted in its entirety, or altered by deleting the words “and conform to the following format,” eliminating the language regarding a statement of issues and evidence relied upon, and reorganizing the provision. See id. at 5.

The Program Suppliers “[did] not oppose the imposition of a set of required contents and structural formats for pleadings,” but noted that the requirements could “overly complicate simple pleadings and would very likely lengthen pleadings (particularly short ones).” Program Suppliers Comments at 4. The Program Suppliers recommended that the format specifications should apply only to pleadings longer than 10 pages or 2500 words, that several of the proposed sections be consolidated under the heading “Argument,” and that the page limitations be enlarged to 25 pages or 6,250 words for motions and responses, and 15 pages or 3750 words for replies. See id. at 4-5.

The Judges proposed section 350.4 to improve the quality and organization of the pleadings that parties submit to the Judges. Submission of pleadings that lack essential elements, or are organized in a way that makes it difficult for the Judges to discern those elements, is not a universal problem, but does occur all too frequently.

The Judges acknowledge the concerns that the commenters have raised, and that this provision requires further consideration and refinement. Rather than delay the remainder of the proposed regulations while working through these concerns, the Judges withdraw the proposed language for the time being, and will adopt a more general requirement that pleadings “must, at a minimum, state concisely the specific relief the party seeks from the . . . Judges, and the legal, factual, and evidentiary basis for granting that relief (or denying the relief sought by the moving party).” As noted above, the Judges have also relocated to this provision the requirement to accompany a motion with a proposed order.

The Music Community, while generally supportive of the proposed requirement that all documents filed by attorneys be filed through eCRB, expressed concern that “it is occasionally necessary to file documents with the Judges that do not related to an active proceeding with an established docket number.” Music Community Comments at 13. The Music Community recommended that, in those cases, eCRB should be designed to permit filings without an active docket number, or the rules should permit a paper filing. See id.

The eCRB system will permit filing of documents without an active docket number when the filer is seeking to initiate a new proceeding. The filer will select a proceeding type from a list (e.g., “Distribution Proceeding-Cable TV,” or “Rulemaking”) and will select “Add New” from the list of existing docket numbers. The CRB will assign a docket number as part of its internal business process.

The eCRB system will also permit a filer to fill in a comment field when filing a document. This will provide filers with the opportunity to convey pertinent information to the CRB, including whether a document for which the selected docket number is “Add New” should in fact be associated with a an existing, inactive docket number.

With that explanation, the Judges find that the Music Community's proposed alternative of permitting paper filings is unnecessary and they will not adopt it.

The Judges have, however, modified the language of section 350.5(a)(1) to have the transition period end September 30, 2017, rather than six-months after the as yet undetermined date of initial deployment of eCRB. The Judges find that having the transition period end on a date certain will avoid any possible confusion over when the transition rules cease to apply.

The Music Community raised concerns with the portion of this proposed section that requires all attorneys to complete eCRB training. See id. at 14. Specifically, the Music Community noted that the training requirement “puts a premium on having such training readily available, including for counsel outside the Washington, DC area . . . .” Id. They recommend that the Judges make training available to attorneys online. See id.

The Judges agree that online training would be an effective solution that would be available to attorneys throughout the country. Unfortunately, online training will not be available at the time eCRB becomes operational. The Judges will, however, make documentation including “frequently asked questions” available on their Web site. In light of the unavailability of online training at the time eCRB becomes operational, the Judges will delete the training requirement from the final rule.

The Music Community did not object to this proposed section which gives the Judges discretion to provide or deny pro se participants access to eCRB. Music Community Comments at 14. The Music Community urges the Judges, however, “to grant such access liberally,” noting that “non-use of eCRB . . . would burden participants who are represented by counsel, as well as the Judges and their staff . . . .” Id.

As the Music community has pointed out, there are competing concerns at play regarding access by pro se participants to eCRB. On one hand, pro se participants' level of technological knowledge and access to technology resources varies widely.11 The Judges must avoid a situation where a pro se participant opts to use eCRB without being fully-aware of the responsibilities that entails or capable of meeting them. On the other, the Judges and all parties will benefit if eCRB is utilized to the fullest. The Judges will bear these considerations in mind when exercising their discretion under this provision, which they will adopt unchanged in the final rule.

Commenter Commercial Television Claimants (CTV) noted that proposed section 350.5(c)(3) states that “claimants `desiring to file a claim with the Copyright Royalty Board for copyright royalties may obtain an eCRB password for the limited purpose of filing claims' ” and states that “CTV reserves its right to submit comments when the Judges propose full rules relating to electronic filing of July claims, including whether claimants should be required to obtain passwords for filing claims. CTV requests that the Judges do not issue any rules relating to the filing of July claims until a full set of proposed rules is noticed for comment.” Commercial Television Claimants Comments on Electronic Filing of Documents (CTV Comments) at 1-2. No other party commented on this provision.

CTV had an opportunity to raise a substantive objection to proposed section 350.5(c)(3) but opted instead to ask the Judges to defer consideration of the proposal until a later rulemaking. Nevertheless, because the next window for filing claims is not until July, section 350.5(c)(3) need not go into effect before the eCRB system becomes operational. The Judges will accede to CTV's request and defer consideration of section 350.5(c)(3) until after the comment period for proposed regulations regarding filing of claims under 17 U.S.C. 111, 119 and 1007.

The Music PROs were the only party to comment on this proposed section, which states that eCRB filers are responsible for ensuring the accuracy of docket entries. The Music PROs sought clarification “as to whether or how the filer has the ability to control or cause revisions to the docket if errors are found” and the applicable time frame for doing so. Music PROs Comments at 6.

eCRB will generate docket entries based on the information that the filer enters when filing the document. The purpose of this proposed rule is to inform filers that the accuracy of the docket is critically dependent on the information that the filer enters. eCRB will not permit filers to change docket entries once a document has been filed; rather, this will be an administrative function available only to CRB staff. As with any circumstance in which a party desires the Judges to take a particular action, if the filer wishes the Judges to correct an inaccuracy in the docket, the filer should file a motion to that effect. The Judges will not impose a time limit on filing such a motion.

With that explanation, the Judges will adopt proposed section 350.5(h) without change.

CTV, the Music Community and the Music PROs commented on this proposed section which states that filers are responsible for identifying restricted documents as such to the eCRB system.

CTV proposed an amendment to require that parties filing restricted documents to file a redacted public version of the document at the same time. CTV Comments at 2. This is already a standard requirement of the protective orders that the Judges issue in proceedings. See, e. g., Protective Order at 3 (section IV.C) Docket No. 16-CRB-003-PR (2018-2022) (“When a Participant refers to Restricted materials in any filings with the Judges, the Participant shall file the Restricted materials under seal and file concurrently suitably redacted papers for inclusion in the Judges' public record.”). This practice has worked well in the past, and the Judges find no need to alter it. Consequently, the Judges find CTV's proposal to be unnecessary and will not adopt it.

The Music Community recommended that the provision be stated in mandatory terms, rather than in terms of assigning responsibility as currently proposed. Music Community Comments at 15-16. The willingness of parties to participate in CRB proceedings is critically dependent on their confidence that doing so will not result in unauthorized public disclosure of their confidential business information. The Music Community's recommendation would provide additional assurance to participants that restricted information will be protected appropriately. The Judges thus find this change to be appropriate and will adopt it.

The Music PROs expressed concern that the proposal does not state “how such restricted documents should be `identified' by the filer. For example, the proposed language does not state whether the filing itself should be marked or designated in some manner, and if so, how.” Music PROs Comments at 6. They recommended that the Judges revise this section to clarify these matters. Id.

Filers will designate documents as “restricted” to eCRB by clicking a check box at the time of filing. Requirements concerning the marking of the documents themselves presently are, and will continue to be determined by the terms of the applicable protective order which, according to the draft regulation, remain full applicable. The Judges do not find it necessary or appropriate to codify the details of the eCRB user interface in the regulations. The Judges will not adopt the Music PROs' recommendation.

The Program Suppliers were the only party to comment on this proposed section, which would exempt certain materials from the requirement for filing electronically. The Program Suppliers sought clarification of what constitutes “oversized” for purposes of the regulation (e.g., whether a digital file that exceeds the maximum allowable file size would qualify as “oversized”) and what the due date would be for a paper submission permitted or required under this provision. Program Suppliers Comments at 5.

This provision was primarily intended to provide an alternative means of filing materials that are difficult or impossible to reproduce usably as a PDF file.12 Examples of exempt materials might include spreadsheets with too many columns to fit legibly on a page, documents with small or indistinct type, or three-dimensional objects. The Judges drafted the provision with sufficient flexibility to apply to a broad number of unanticipated circumstances in which electronic filing would be impossible, impractical, or excessively burdensome. The Judges find that it would be a disservice to filers to make this provision more rigid by making it more specific, and remind filers that, if necessary, they can seek guidance from the Judges by motion.

As noted, the Judges have accepted the Program Suppliers' recommendation to include maximum allowable file sizes as part of section 350.3(b)(2). While section 350.5(j) could permit parties to use an alternative means of filing oversized or unmanageable materials, the Judges discourage the practice. It would be preferable for parties to reduce the size of their filings, or divide them into multiple, smaller files.

Proposed section 350.7(a)(5) makes clear when a document that is not filed through eCRB is considered to be timely filed. The separate requirement under section 350.5(j) to file electronically a notice of filing is subject to the rule governing timeliness of electronic filings generally, i.e., section 350.7(a)(5)(i). The Judges find that the proposed regulations require no clarification.

Finally, the Program Suppliers note that proposed section 350.5(j)(1) includes an erroneous cross reference to section 350.5(a)(2). Program Suppliers Comments at 6. The correct cross reference is to section 350.6(a)(2). The Judges will include the correct cross reference in the final rule.

The Music Community found the protections for personal information contained in this proposed section to be inadequate, and recommended that they be strengthened. Music Community Comments at 16. Specifically, in addition to some minor changes to the wording of the existing proposal, the Music Community recommended that the Judges include the following additional paragraph:

The Judges find the Program Suppliers' recommendation provides prudent, additional protection in those exceedingly rare instances when parties find it necessary to include personally identifiable information in their filings. The Judges will adopt the Program Suppliers' recommendation and will include it as section 350.5(k)(2).

The Music Community and the Program Suppliers commented on this proposed section which establishes a procedure for filers to follow in the event of technical difficulties that prevent them completing electronic filing, and states that those difficulties may constitute “good cause” justifying an extension of the filing deadline or “excusable neglect” for excusing a late filing. As with many of the other proposed rules, the Judges modelled this provision closely on the Local Rules for the U.S. District Court for the District of Columbia. See LCvR 5.4(g)(3) (D. D.C. Apr. 2016).

The Music Community, referring to severe technical problems that the U.S. Copyright Office experienced in 2015, asserted that the “[e]ven if hosting arrangements for eCRB may be different . . . system issues have to be viewed as a realistic possibility” 13 and argued that “it is cold comfort to know that the system issue `may' constitute good cause for a late filing.” Music Community Comments at 17-18. The Music Community also asserted that “it is unfair for the Judges' rules to require filing through eCRB and provide no alternative when a systems issue would cause a party to miss a statutory deadline that the Judges cannot extend.” Id. at 18. They propose two changes to the proposed section. First, for nonstatutory filing deadlines they would require the Judges to consider technical problems to be a good cause for an extension or delay. See id. Second, when technical problems would cause a party to miss a statutory deadline, they propose that “either the notification required by Section 350.5(l)(3) should be considered the time of filing, or the Judges should accept filing by means of electronic mail.” Id.

The Judges find that the existing language giving the Judges discretion to accept filings that are late due to a technical problem with eCRB to be an adequate and appropriate means of dealing with any potential failures of technology. It would be both imprudent and unnecessary for the Judges to adopt a rule that categorically makes any technical glitch that contributes to a party's failure to meet a deadline an automatic basis for extension. The Judges thus reject the Music Community's first proposal.

The Judges find that the Music Community has raised a valid concern regarding technological issues that could prevent a party from meeting a statutory (i.e., non-extendible) deadline. However, the Judges find their proposed solution of deeming a filing to be made when the party gives the notification required by section 350.5(l)(3) to be problematic. It is not clear to the Judges that a filing that is made after a statutory deadline can be deemed by regulation to have been made earlier. By contrast, the Judges find the Music Community's suggestion that the Judges accept email filings in those circumstances to be a practical and appropriate solution. The Judges will include language in the final rule that permits electronic mail filing with the Judges and (to the extent required) electronic mail delivery to other parties in the event a technical problem prevents filing through eCRB by a statutory deadline. In addition, the Judges will revise the provision to permit filers to file by electronic mail when a technical problem prevents them from filing through eCRB by a non-statutory deadline as well. In either event, the Judges may require the filer to refile the document through eCRB once the technical problem is resolved, but the filing date of the document will be the date that it was sent to the CRB by electronic mail.

The Program Suppliers comment sought clarification whether after-hours technical support will be available, and sought a “default rule . . . for what a party is to do with a filing that it intends to file” after hours on the eve of a filing deadline. Program Suppliers Comments at 6. Customer support will be available during standard business hours. The modifications to the proposed provision described in the preceding paragraph constitute the “default rule” that the Program Suppliers requested.

Proposed section 350.6(f) preserves the existing deadlines for filing of responses and replies of five business days from filing of the motion and four days from filing of the response, respectively. The SDC, IPG, and the Program Suppliers all recommend enlarging that time period. The SDC recommends ten days for responses and seven days for replies. SDC Comments at 3. IPG recommends ten days for response and five days for replies. IPG Comments at 1. The Program Suppliers recommend “a reasonable enlargement of the response and reply deadlines provided that such an enlargement is not likely to result in any hindrance of or delay to the timely distribution of cable and/or satellite royalties.” Program Suppliers Comments at 7.

The Judges recognize that, from the parties' perspective, the existing deadlines are tight and, in some instances, unnecessarily so. The Judges find that a modest increase in the response time for responses and replies is appropriate, with the understanding that the Judges may shorten the response time by order as necessary. In this rulemaking, the Judges extend motion response times to ten days for responses and five days for replies.

CTV and the Program Suppliers both recommended that this provision be modified to clarify that the participant list will indicate whether a party receives documents through eCRB, or whether other parties must deliver documents to that party by other means. See CTV Comments at 3; Program Suppliers Comments at 7.

The participant list maintained in eCRB will indicate which parties do and do not receive filed documents through eCRB. In addition, at the time a document is filed, eCRB will inform the filer of the identity of any parties on the participant list to whom the filer must deliver the document outside the eCRB system. The Judges find CTV's proposed modification to section 350.6(g) to reflect the items of information maintained in the participant list to be reasonable and appropriate and will adopt it.

The SDC noted that “participants in royalty distribution proceedings have adopted an informal procedure to serve each party electronically on the same day that pleadings are filed.” SDC Comments at 3. The SDC recommended that the rules allow email in lieu of paper delivery for documents filed outside of eCRB.

The Judges find that proposed section 350.6(h)(2) already permits parties to deliver documents to other parties “by such other means as the parties may agree in writing among themselves.” The Judges recognize, however, that the heading “Paper filings” at the beginning of this paragraph may be interpreted to preclude delivery by electronic mail. The Judges did not intend to preclude parties from agreeing among themselves to exchange documents by electronic mail. Consequently, the Judges will change the paragraph heading to read “Other filings.”

The Music Community expressed concern that proposed section 350.6(h)(2) “might be read as applying to discovery responses that are served on other participants” and not filed with the CRB. Music Community Comments at 19-20. The Judges do not find that to be a reasonable interpretation of the language they proposed. Nevertheless, the Judges find the Music Community's proposed language to be reasonable, clear, concise, and in accordance with the Judges' intention. The Judges will modify section 350.6(h)(2) accordingly.

The Program Suppliers recommended that section 351.1 be amended to “clarify whether, at the point of filing an initial Petition to Participate, any party needs to be served . . . .” Program Suppliers Comments at 8. The only change that the Judges are proposing to this provision is to make reference to the ability of filers to make payment of the $150 filing fee through a portal provided by eCRB to the CRB's payment processor. Under current rules and practices, parties file Petitions to Participate with the CRB only. That will not change once the parties are able to file Petitions to Participate through eCRB. The Judges find that no further change to section 351.1 is needed.

Some commenters offered general comments, unrelated to any of the specific proposed rules. For example, CTV proposed that attorneys representing participants, and approved pro se participants, be granted access to eCRB to retrieve all non-restricted pleadings and orders in all cases before the CRB. See CTV Comments at 3-4. Similarly, the Music Community and the Music PROs recommended that all non-restricted materials be made available to the general public through eCRB. See Music Community Comments at 5; Music PROs Comments at 2.

The Judges can confirm that eCRB is being designed to allow attorneys, pro se participants, and members of the general public to search for and retrieve non-restricted documents stored in the system. During the current, initial phase of the project, only documents filed from and after the date the system becomes operational will be stored in eCRB. The system is being designed to permit inputting of documents that were filed with the CRB prior to that date, but the task of uploading of those documents is not within the scope of the current phase of the project. The Judges plan to input those documents at some time in the future, subject to budgetary and personnel constraints. No commenter requested any specific regulatory language relating to this issue. The Judges, therefore, will not adopt any regulatory language at this time.

The Music Community professed confusion concerning the Judge's use of the term “delivery” in the proposed regulations, and recommended that the Judges revert to using the term “service” as in the existing regulations. See Music Community Comments at 19. The Judges substituted the term “delivery” for “service” in recognition of the fact that formal service of documents is not a requirement in CRB proceedings. Instead, participants are merely required to provide copies of filed documents to the other participants. The Judges use “delivery” in its sense of “giving forth” or “dispatching;” they do not intend to imply that a party is obliged to guaranty receipt of the document. In light of that explanation, the Judges find no need to replace the words “deliver” and “delivery” where they appear in the proposed regulations.

The Music Community exhorted the Judges to include strong protection for confidential business information in eCRB, and to allow users to test those protections before the system becomes operational. See id. at 7-8. In addition, they recommended that the Judges impose a five-business-day waiting period between the filing of non-restricted documents with eCRB, and public availability of those documents through the system, in order to give parties an opportunity to intervene if one of them improperly fails to identify a document as “restricted” to the system. See id.

eCRB is being designed and implemented with security in mind, and will comply with applicable federal information security standards as well as the very rigorous standards required by the Library of Congress. After completion and before launch, the system will be subject to an assessment and authorization process conducted by an independent contractor of the Library of Congress (separate from the contractor that is building the system). The Judges find that it is neither necessary nor appropriate to allow prospective users to carry out their own security assessment on the system.

The CRB is an office of public record and the Judges take seriously their obligation to provide timely public access to the record of CRB proceedings. The Judges also recognize the importance of protecting confidential business information against unauthorized disclosure. In the past, these sometimes competing interests have been balanced through the operation of the protective orders that the Judges have adopted. Among other things, these protective orders specify the steps to be taken to mitigate any damage that might be caused when confidential information is not properly designated and treated as restricted. The Judges anticipate that future protective orders, as they may be revised from time to time, will continue to provide adequate means for addressing any inadvertent disclosures of information that should have been designated restricted. The Judges find that the Music Community's proposal to impose a mandatory waiting period before the disclosure of every non-restricted document is unnecessary, overbroad, and an unjustified infringement on the public's right of access to the record of CRB proceedings. The Judges will not adopt the Music Community's proposal.

Having considered all comments from interested parties, the Judges adopt as final rules the changes and additions to parts 301, 350, and 351 detailed in this Final Rule.

For the reasons set forth in the preamble, and under the authority of chapter 8, title 17, United States Code, the Copyright Royalty Judges amend parts 301, 350, and 351 of Title 37 of the Code of Federal Regulations as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2016-0087 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 19, 2017. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2016-0087, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of October 18, 2016 (81 FR 71668) (FRL-9952-19), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E8431) by Bayer CropScience, 2 T.W. Alexander Dr., Research Triangle Park, NC. The petition requested that 40 CFR 180.435 be amended by establishing tolerances for residues of the insecticide deltamethrin, (S)-cyano(3-phenoxyphenyl)methyl (1R,3R)-3-(2,2-dibromoethenyl)-2,2-dimethylcyclopropanecarboxylate, in or on orange, fruit at 0.3 parts per million (ppm); orange, dried pulp at 3 ppm; orange, oil at 50 ppm. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has revised the commodity definitions and tolerances as follows: “Orange fruit” proposed at 0.3 ppm shall be “Orange” at 0.30 ppm; “Orange Dried Pulp” at 3 ppm shall be “Citrus, dried pulp” at 3.0 ppm; and “Orange Oil” at 50 ppm shall be “Citrus, oil” at 50 ppm. The reason for these changes is explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for deltamethrin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with deltamethrin follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Deltamethrin is classified as a Type II pyrethroid. Type II pyrethroids include an alpha-cyano moiety and induce a syndrome that includes pawing, burrowing, salivation, hypothermia, and coarse tremors leading to choreoathetosis. Neurotoxicity was observed throughout the database, and clinical signs characteristic of Type II pyrethroids, such as increased salivation, altered mobility/gait, and tremors, were the most common effects observed. Other observed neurotoxic effects included increased sensitivity to external stimuli, abnormal vocalization, and decreased fore- and hind-limb grip strength.

Chronic exposure does not result in accumulation or increased potency as a result of deltamethrin's rapid absorption, metabolism, and elimination. No observed adverse effect levels (NOAELs) for the acute and chronic studies are similar, and the acute endpoint is protective of the endpoints from repeat-dose studies. Only single-day risk assessments need to be conducted for purposes of endpoint selection and exposure assessment.

There were no indications of fetal toxicity in any of the guideline studies. Evidence of increased juvenile qualitative sensitivity was observed in the developmental neurotoxicity and 2-generation reproduction studies. However, the observations of increased sensitivity were at doses that were considered to be relatively high (i.e., near lethal doses), whereas at doses near the point of departure, no effects on parental animals or offspring were observed in either the developmental neurotoxicity (DNT) or 2-generation reproduction study and, therefore, there is no susceptibility at these doses.

Deltamethrin is classified as “not likely to be carcinogenic to humans.” There was no evidence of carcinogenicity in either the rat or mouse long-term dietary studies up to the highest dose tested, nor was there any mutagenic activity in bacteria or cultured mammalian cells.

Specific information on the studies received and the nature of the adverse effects caused by deltamethrin as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document Deltamethrin: Human Health Risk Assessment for the Proposed Use of Deltamethrin on Oranges Without a U.S. Registration at page 24 in docket ID number EPA-HQ-OPP-2016-0087.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for deltamethrin used for human risk assessment is shown in the Table of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to deltamethrin, EPA considered exposure under the petitioned-for tolerances as well as all existing deltamethrin tolerances in 40 CFR 180.435. EPA assessed dietary exposures from deltamethrin in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for deltamethrin. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 National Health and Nutrition Examination Surveys, What We Eat in America (NHANES/WWEIA). As to residue levels in food, EPA acute dietary exposure is partially refined. Residues could result from agricultural uses and adulticide uses. Excluding the new orange tolerances, residue-level and percent crop treated assumptions have not changed since the previous rule, and those are discussed in the final rule published in the Federal Register of March 27, 2015 (80 FR 16296). For oranges, EPA used field trial values and the empirical processing factors for orange juice and citrus oil. In addition, HED used a percent crop treated estimate of 9%.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) Version 3.16. This software uses 2003-2008 food consumption data from the USDA's NHANES/WWEIA. Although a chronic dietary endpoint was not identified for deltamethrin, a chronic dietary exposure assessment was performed to provide background exposure for aggregation with short-term residential exposure. Residues could result from three different sources: Agricultural uses, food handling establishment uses, and adulticide uses. Assumptions about residue levels in food and percent crop treated for crops except for oranges have not changed since the previous rule and are explained in the final rule published in the Federal Register of March 27, 2015 (80 FR 16296). For oranges, EPA used average field trial values and assumed 100% of imported oranges are treated with deltamethrin.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that deltamethrin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for acute exposure for existing uses as follows:

Apples: 2.5%; cantaloupes: 2.5%, carrots: 2.5%, cucumbers: 5%, pears: 5%, soybeans: 2.5%, tomatoes: 2.5%, watermelons: 2.5%.

The Agency estimated the PCT for chronic exposure for existing uses as follows:

Almonds: 1%; apples: 1%; globe artichokes: 40%; canola: 5%; cantaloupes: 1%; carrots: 1%; cotton: 1%; cucumbers: 2.5%; leeks: 2.5%; onions: 2.5%; pears: 2.5%; peppers: 5%; pistachios: 1%; potatoes: 1%; pumpkin: 1%; radishes: 1%; soybeans: 1%; squash: 1%; sunflowers: 2.5%; sweet corn: 1%; tomatoes: 1%; turnips: 1%; walnuts: 1%; watermelons: 1%.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except for those situations in which the maximum PCT is less than one. In those cases, 2.5% is used as the maximum PCT. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT.

The Agency estimated that 9% of domestically consumed oranges would be treated with deltamethrin as a result of the approval of the tolerances on oranges. Because there is currently no domestic use of deltamethrin on oranges, the Agency estimated the percentage of the domestic consumption of oranges that are imported. This calculation is based on three years of data (2011-2013) from USDA's Economic Research Service and assumes 100 percent of imported oranges are treated with deltamethrin. Because it is unlikely that all imported oranges will be treated with deltamethrin, the Agency believes that assuming 9% of oranges consumed have been treated with deltamethrin will not underestimate deltamethrin exposure on oranges.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which deltamethrin may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for deltamethrin in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of deltamethrin. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the First Index Reservoir Screening Tool (FIRST), Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of deltamethrin for acute exposures are estimated to be 0.20 parts per billion (ppb) for surface water and 0.20 ppb for ground water and chronic exposures for non-cancer assessments are estimated to be 0.20 ppb for surface water and 0.20 ppb for ground water. Both the acute and chronic surface and ground drinking water concentration were limited by the solubility of deltamethrin.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

For acute dietary risk assessment and chronic dietary exposure assessment, the water concentration value of 0.20 ppb was used to assess the contribution to drinking water.

Although a chronic dietary endpoint was not identified for deltamethrin, a chronic dietary exposure assessment was performed to provide background exposure for aggregation with short-term residential exposure.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Deltamethrin is currently registered for the following uses that could result in residential exposures: Indoor (spot, crack and crevice) and outdoor (turf, garden and trees) environments, pet collars, paint preservative, impregnated mosquito net, and wide area mosquito and fly control. EPA assessed residential exposure using the Agency's 2012 Residential Standard Operating Procedures (SOPs) along with updates in policy regarding body weight in addition to the following assumptions: Since no treatment-related effects were observed at the limit dose, a dermal point of departure (POD) was not selected, and neither a handler nor a post-application dermal exposure assessment is required.

i. Residential handler exposures. Short-term residential handler inhalation exposure is anticipated from indoor and outdoor environments, and paint preservatives. Because no intermediate-term adverse effect was identified, deltamethrin is not expected to pose an intermediate-term risk.

ii. Residential post-application exposures. Post-application inhalation exposure for adults and children is anticipated to be negligible for indoor (spot, crack and crevice) and outdoor (turf, garden and trees) environments, pet collars and paints; therefore, a quantitative assessment was not performed. EPA assessed post-application short-term incidental oral exposures to children for representative indoor/outdoor and pet incidental oral scenarios including hand-to-mouth, object-to-mouth, soil ingestion, and episodic granule ingestion scenarios. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Deltamethrin is included in the pyrethroid/pyrethrin cumulative risk assessment (CRA). The new tolerances to cover residues of deltamethrin on imported oranges, citrus oil and citrus pulp has an insignificant impact on the CRA. In the cumulative assessment, residential exposure was the greatest contributor to the total exposure. Although there are residential uses for deltamethrin, the proposed use will have no impact on the residential component of the cumulative risk estimates. Dietary exposures make a minor contribution to the total pyrethroid exposure, and as a result, the new use on oranges would have an insignificant impact on the cumulative dietary risk.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act Safety Factor (FQPA SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There is no quantitative and/or qualitative evidence of increased susceptibility of rat or rabbit fetuses to in utero exposure to deltamethrin. However, potential qualitative susceptibility was observed at high doses in the DNT and 2-generation reproduction study for juveniles. In addition, pyrethroid pharmacokinetics literature indicates an increased quantitative susceptibility for children less than 6 years of age.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF reduced to 1X for assessing risks to adults and children 6 years of age and older and to 3X for assessing risks to children less than 6 years of age. That decision is based on the following findings:

i. The toxicity database is considered complete for deltamethrin with respect to guideline studies; it includes, among other studies, developmental toxicity studies in rats and rabbits, a reproduction study in rats, and acute neurotoxicity (ACN), subchronic neurotoxicity (SCN), and developmental neurotoxicity (DNT) studies. Nevertheless, EPA lacks additional data to fully characterize the potential for juvenile sensitivity to many pyrethroids, including deltamethrin. For this assessment, EPA considered the standard guideline studies as well as numerous studies from the scientific literature that describe the pharmacodynamic (PD) and pharmacokinetic (PK) profile of the pyrethroids in general. Many of these studies were conducted with deltamethrin.

ii. As with other pyrethroids, deltamethrin causes neurotoxicity from interaction with sodium channels leading to clinical signs of neurotoxicity. These effects are well characterized and adequately assessed by the body of data available to the Agency.

iii. Evidence of increased juvenile qualitative sensitivity was observed in the developmental neurotoxicity and 2-generation reproduction studies. However, the observations of increased sensitivity were at doses that were considered to be relatively high (i.e., near lethal doses), whereas at doses near the point of departure, no effects on parental animals or offspring were observed in either the DNT or 2-generation reproduction study, and therefore, there is no susceptibility at these doses. The Agency has retained a 3X uncertainty factor to protect for exposures of children less than 6 years of age based on increased quantitative susceptibility seen in studies on pyrethroid pharmacokinetics (primarily conducted with deltamethrin) and the increased quantitative juvenile susceptibility observed in high dose guideline and literature studies with deltamethrin and other pyrethroids. The Agency has no residual uncertainties regarding age-related sensitivity for women of child bearing age as well as for all adult populations and children 6 years of age and older, based on the absence of pre-natal sensitivity observed in 76 guideline studies for 24 pyrethroids and the scientific literature. Additionally, no evidence of increased quantitative or qualitative susceptibility was seen in the pyrethroid scientific literature related to pharmacodynamics.

iv. There are no residual uncertainties identified in the exposure databases. The dietary exposure assessments are based on reasonable to high-end residue levels (that account for parent and metabolites of concern), processing factors, and percent crop treated assumptions. Furthermore, conservative, upper-bound assumptions were used to determine exposure through drinking water and residential sources, such that these exposures have not been underestimated. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to deltamethrin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by deltamethrin.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to deltamethrin will occupy 86% of the aPAD for children 3-5 years old, the population group receiving the greatest exposure.

2. Chronic risk. Based on the data summarized in Unit III.A., there is no increase in hazard with increasing dosing duration. Furthermore, chronic dietary exposures will be lower than acute exposures. Therefore, the acute aggregate assessment is protective of potential chronic aggregate exposures.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Deltamethrin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to deltamethrin.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures, including inhalation and hand-to-mouth (for children only), result in aggregate MOEs of 2,300 for the U.S. Population; 2,600 for females ages 13-49; and 490 for children 1-2 years old. Because EPA's level of concern for deltamethrin is a MOE of 100 for the U.S. population and females 13-49, and 300 for children 1-2 years old or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, deltamethrin is not expected to pose an intermediate-term risk.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, deltamethrin is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to deltamethrin residues.

Adequate enforcement methodology (gas chromatography with electron capture detection (GC/ECD)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has established MRLs for deltamethrin in or on citrus fruits at 0.02 ppm. These MRLs are different than the tolerances being established for deltamethrin in the United States. Harmonization of the 0.30 ppm tolerance with the lower Codex MRL of 0.02 ppm is not possible because the maximum residue value in oranges was 0.18 ppm, which is considerably higher than the Codex MRL.

The Agency added a significant figure to the proposed tolerance level for orange and citrus, dried pulp to prevent violative samples from being considered non-violative. For example, if a sample contained a residue level of 0.34 ppm, it would have a violative residue if the tolerance is set at 0.30 ppm. In addition, the Agency is revising the commodity terminology to be consistent with the Agency's commodity vocabulary.

Therefore, tolerances are established for residues of deltamethrin, (S)-cyano(3-phenoxyphenyl)methyl (1R,3R)-3-(2,2-dibromoethenyl)-2,2-dimethylcyclopropanecarboxylate, in or on orange at 0.30 ppm; citrus, dried pulp at 3.0 ppm; citrus, oil at 50 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

This document announces that, on April 9, 2017, OMB approved information collection requirements contained in the Commission's Report and Order, FCC 16-128, published at 81 FR 86586. The OMB Control Number is 3060-1163. The Commission publishes this notice as an announcement of the effective date of those information collection requirements.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on April 9, 2017, for the information collection requirements contained in 47 CFR 1.5000 through 1.5004, 25.105, 73.1010 and 74.5, as amended, in the Commission's Report and Order, FCC 16-128. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1163.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1163.

OMB Approval Date: April 9, 2017.

OMB Expiration Date: April 30, 2020.

Title: Regulations Applicable to Broadcast, Common Carrier and Aeronautical Radio Licensees Under Section 310(b) of the Communications Act of 1934, as amended.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 81 respondents; 81 responses.

Estimated Time per Response: 2 hours-46 hours.

Frequency of Response: On-occasion reporting requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C. 151, 152, 154(i), 154(j), 160, 303(r), 309, 310 and 403.

Total Annual Burden: 1,830 hours.

Total Annual Cost: $524,400.

Nature and Extent of Confidentiality: In submitting the information requested, respondents may need to disclose confidential information to satisfy the requirements. However, covered entities would be free to request that such materials submitted to the Commission be withheld from public inspection (see 47 CFR 0.459 of the Commission's rules).

Privacy Act Impact Assessment: No impact(s).

Needs and Uses: On September 29, 2016, the Commission adopted final rules in Review of Foreign Ownership Policies for Broadcast, Common Carrier and Aeronautical Radio Licensees under Section 310(b)(4) of the Communications Act of 1934, as Amended, Report and Order, 31 FCC Rcd 11272 (2016) (2016 Foreign Ownership Report and Order). In the 2016 Foreign Ownership Order, the Commission:

• Modified its foreign ownership filing and review process for broadcast licensees by extending to such licensees the streamlined rules and procedures developed for foreign ownership reviews of common carrier and certain aeronautical licensees (collectively, “common carrier” licensees) (previously codified in Part 1, Subpart F, Sections 1.990 through 1.994 of the Commission's rules), adopted in Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees under Section 310(b)(4) of the Communications Act of 1934, as Amended, IB Docket No. 11-133, Second Report and Order, 28 FCC Rcd 5741(2013), with certain modifications to tailor them to the broadcast context; and

• Reformed the methodology used by both common carrier and broadcast licensees that are, or are controlled by, U.S. publicly traded companies to assess their compliance with the foreign ownership limits in Sections 310(b)(3) and 310(b)(4) of the Act, respectively.

The 2016 Foreign Ownership Report and Order incorporated broadcasters into the common carrier foreign ownership rules through various changes to the rules, including adding new paragraph (e) to Section 1.5000, which sets forth the new methodology for eligible public companies—both broadcast and common carrier—and new paragraphs (f)(2)-(3) of Section 1.5004, which sets forth new compliance provisions for such companies. Moreover, the rules adopted in the 2016 Foreign Ownership Report and Order included the following broadcast-specific provisions in lieu of provisions applicable to common carrier licensees:

• Broadcast licensees filing a petition for declaratory ruling (petition) to request Commission approval of foreign ownership in excess of the 25 percent benchmark in Section 310(b)(4) will use the broadcast “attribution” criteria to determine those U.S. and foreign ownership interests that must be disclosed in the petition. The disclosure will ensure the Commission has sufficient information to understand the licensee's ownership structure and to verify the identity and ultimate control of the foreign investor for which the petitioner seeks specific approval.

• Broadcast licensees will use the broadcast “insulation criteria” set forth in the broadcast attribution rules in determining whether the broadcaster must include in its petition a request for “specific approval” of a particular foreign investor because the investor holds, or would hold, directly and/or indirectly, more than 5 percent (or, in the case of certain passive investors, more than 10 percent) of the total outstanding capital stock (equity) and/or voting stock (or a controlling share) of the licensee's controlling U.S.-organized parent company. The current insulation criteria for common carrier licensees will continue to apply.

In addition to these tailored changes to incorporate broadcast licensees into the existing foreign ownership rules applicable to common carrier licensees under Section 310(b)(4), the 2016 Foreign Ownership Report and Order clarified the Commission's foreign ownership compliance procedures (to be codified in Section 1.5004(f)(3)-(4)) allowing a broadcast or common carrier licensee to file a petition for declaratory ruling to remedy the licensee's inadvertent non-compliance with the statutory foreign ownership limits or the terms and conditions of the licensee's existing foreign ownership ruling with reasonable assurance that the Commission will not take enforcement action.

The Commission also made non-substantial changes to this information collection to renumber the foreign ownership rules. There is for the most part a one-to-one correlation between the existing rules (1.990-1.994) and the new rules (1.5000-1.5004).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

The Northern Pacific Halibut Act (Halibut Act) of 1982, 16 U.S.C. 773-773K, requires the Secretary of Commerce (Secretary) to adopt regulations as may be necessary to carry out the purposes and objectives of the Halibut Convention between the United States and Canada (Halibut Convention) (16 U.S.C. 773c) and the Halibut Act. Section 773c of the Halibut Act also authorizes the regional fishery management councils to develop regulations in addition to, but not in conflict with, regulations of the IPHC to govern the Pacific halibut catch in their corresponding U.S. Halibut Convention waters.

Each year between 1988 and 1995, the Pacific Fishery Management Council (Council) developed and NMFS implemented a catch sharing plan in accordance with the Halibut Act to allocate the total allowable catch (TAC) of Pacific halibut in Area 2A between treaty Indian and non-Indian harvesters, and among non-Indian commercial and sport fisheries. In 1995, NMFS implemented the Council-recommended long-term Plan (60 FR 14651; March 20, 1995). Every year since, the Council has recommended and NMFS has approved minor revisions to the Plan to adjust for the changing needs of the fisheries.

For 2017, the Council recommendation includes minor modifications to sport fisheries to maximize harvest opportunities while keeping total catch within the available quota and changes to the inseason procedures to allow flexibility to address bycatch concerns. The IPHC recommended an Area 2A TAC for 2017 of 1,330,000 pounds (lb) (603.28 metric tons (mt)), which was included in the IPHC regulations approved by the Secretary of State and published by NMFS on March 7, 2017 (82 FR 12730). On February 23, 2017, NMFS published a proposed rule to approve the Council's recommended changes to the Plan and recreational management measures for Area 2A (82 FR 11419), including allocations consistent with the 2017 Area 2A TAC. NMFS also proposed changing the codified regulations to make them consistent with the Council's recommended changes to the inseason provisions of the Plan. This final rule includes these components of the proposed rule, and also contains dates for the sport fisheries based on the 2017 Plan and dates submitted by the state of California following publication of the proposed rule.

The Plan provides that incidental halibut retention in the sablefish primary fishery north of Pt. Chehalis, WA, will be allowed when the Area 2A TAC is greater than 900,000 lb (408.2 mt), provided that a minimum of 10,000 lb (4.5 mt) is available above a Washington recreational TAC of 214,100 lb (97.1 mt). The Area 2A TAC for 2017 is high enough to allow incidental retention of halibut in this fishery. The Council recommended specific Pacific halibut landing restrictions for the sablefish primary fishery at its March 2017 meeting. NMFS will publish the restrictions in a separate Federal Register notice, as an inseason action in the groundfish fishery by April 1, 2017, or as soon as possible thereafter.

NMFS accepted public comments on the Council's recommended modifications to the Plan and the resulting proposed domestic fishing regulations through March 15, 2017. NMFS received one comment letter from the California Department of Fish and Wildlife (CDFW) recommending final recreational fishing season dates for the 2017 season. Based on the increased TAC and greater fishing effort, CDFW recommended season dates of May 1-June 15, July 1-July 15, August 1-August 15, and September 1-October 31, until quota has been attained or until October 31, whichever comes first. This 2017 season recommendation is 16 days longer than the 2016 season dates, with most of the additional open days in the month of May. CDFW expects catches to be higher than the historically low numbers of previous years, but does not expect the California sport fishery allocation to be exceeded. Inseason tracking and monitoring of catches will continue on a weekly basis. NMFS concurs that the CDFW-recommended season dates are appropriate, and California sport fishery season dates are updated in this final rule.

As described in the proposed rule, additional stakeholder meetings took place during the winter. CDFW, in cooperation with their stakeholders, considered and recommended final sport fishery season dates. Washington and Oregon season dates were published in the proposed rule; this final rule includes the final California season dates in addition to the Washington and Oregon dates, as described above in Comments and Responses.

This final rule includes introductory text at paragraph (8) that was mistakenly omitted in the proposed rule.

The proposed rule included a new paragraph added at § 300.63(c)(2)(vi). The proposed text included the acronym “YRCA,” which was used for the first time in § 300.63 but the proposed regulatory text did not define the acronym. This final rule includes a non-substantive revision at § 300.63(c)(2)(vi), adding the definition of the Yelloweye Rockfish Conservation Area to the regulatory text, and removes the definition of the acronym from later in that same section, at § 300.63(e)(2). The proposed rule also mistakenly omitted a cross-reference to Pacific coast groundfish regulations at § 660.70(g) and (h). These two paragraphs define the boundaries for two Stonewall Bank YRCA expansions, which increase the size of the area closed by the standard Stonewall Bank YRCA (defined at § 660.70(f)). For clarity, cross-references to the definitions of the two possible YRCA expansions that may be implemented inseason are added in this final rule. These changes to § 300.63(c)(2)(vi) are not substantive and do not change the intent or meaning of the regulation described in the proposed rule.

The sport fishing regulations for Area 2A, included in section 26 (referring to the relevant section of the IPHC regulations) below, are consistent with the measures adopted by the IPHC and approved by the Secretary of State, but were developed by the Council and promulgated by the United States under the Halibut Act. Section 26 refers to a section that is in addition to and corresponds to the numbering in the IPHC regulations published on March 7, 2017 (82 FR 12730). The Plan is published in the Federal Register but is not codified in the Code of Federal Regulations.

In section 26 of the annual domestic management measures, “Sport Fishing for Halibut” paragraph (8) is revised to read as follows: