Federal Register Vol. 83, No.12,

The NRC published a final rule in the Federal Register on July 18, 2017 (82 FR 32934), to incorporate by reference recent editions of and addenda to the ASME Codes for nuclear power plants in chapter I of title 10 of the Code of Federal Regulations (10 CFR). The final rule contained a minor error when referring to a table related to certification requirements for non-destructive examination personnel. The final rule inadvertently prohibited the use of the entire appendix containing the table instead of prohibiting only the table and subarticle as intended. The final rule also contained a minor error in the requirement for check valve monitoring in 10 CFR 50.55a(b)(3)(iv) by referencing an incorrect edition of the ASME Code for Operation and Maintenance of Nuclear Power Plants (OM Code). In particular, the final rule amended 10 CFR 50.55a(b)(3)(iv) to state that licensees applying Appendix II, 1998 Edition through the 2012 Edition of the ASME OM Code shall satisfy the requirements of paragraphs (b)(3)(iv)(A), (B), and (D). This requirement should have applied only to the 1998 Edition through the 2002 Addenda of the ASME OM Code, because the remaining portion of 10 CFR 50.55a(b)(3)(iv) addresses the check valve provisions effective after the 2002 Addenda of the ASME OM Code. This document corrects the final rule by revising the section that contains these errors.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on this amendment because the corrections will have no substantive impact and are of a minor and administrative nature dealing with an error in a reference to a table in a document being incorporated by reference and an error when referring to a specific edition of the ASME OM Code.

As discussed in the statement of considerations on page 56826 of the proposed rule (80 FR 56820; September 18, 2015) and on page 32942 of the final rule (82 FR 32934; July 18, 2017), the NRC intended to prohibit the use of a table and subarticle with an accelerated training process for ultrasonic examination nondestructive examination personnel. The rule language inadvertently prohibited the use of the entire appendix, and this amendment corrects the error by prohibiting the use of the table and subarticle only.

As discussed in the statement of considerations on page 56832 of the proposed rule (80 FR 56820; September 18, 2015) and on page 32950 of the final rule (82 FR 32934; July 18, 2017), the NRC intended that a specific requirement for check valve monitoring in 10 CFR 50.55a(b)(3)(iv) apply only to the 1998 Edition through the 2002 Addenda of the ASME OM Code. The final rule inadvertently referenced the 2012 Edition of the ASME OM Code in this requirement rather than the 2002 Addenda. This amendment corrects the error by replacing “2012 Edition” with “2002 Addenda” in the second sentence of the introductory text of 10 CFR 50.55a(b)(3)(iv).

This amendment does not require action by any person or entity regulated by the NRC. Also, the final rule does not change the substantive responsibilities of any person or entity regulated by the NRC. Furthermore, for the reasons stated above, the NRC finds, pursuant to 5 U.S.C. 553(d)(3), that good cause exists to make this rule effective upon publication of this notice.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 50:

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore, the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Dassault holds type certificate no. A59NM, which provides the certification basis for the Model Falcon 7X airplane. The Dassault Model Falcon 7X airplane is a twin engine, transport category airplane with a passenger seating capacity of 19 and a maximum takeoff weight of 70,000 to 73,000 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the Dassault Model Falcon 7X airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Dassault must show that the Model Falcon 7X airplane meets the applicable provisions of the regulations listed in type certificate no. A59NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 7X airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 7X airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the Dassault Model Falcon 7X airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only certain a novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Dassault Model Falcon 7X airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Future Requests for Installation of Non-Rechargeable Lithium Batteries

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore, the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Dassault holds type certificate no. A46EU, which provides the certification basis for the Model Falcon 900EX airplane. The Dassault Model Falcon 900EX airplane is a twin engine, transport category airplane with a passenger seating capacity of 19 and a maximum takeoff weight of 48,300 to 49,000 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the Dassault Model Falcon 900EX airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Dassault must show that the Model Falcon 900EX airplane meets the applicable provisions of the regulations listed in type certificate no. A46EU or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 900EX airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 900EX airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the Dassault Model Falcon 900EX airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only certain a novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Dassault Model Falcon 900EX airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

The FAA anticipates that non-rechargeable lithium batteries will be installed in most makes and models of transport category airplanes. We intend to require special conditions for certification projects involving non-rechargeable lithium battery installations to address certain safety issues until we can revise the airworthiness requirements. Applying special conditions to these installations across the range of transport category airplanes will ensure regulatory consistency.

Typically, the FAA issues special conditions after receiving an application for type certificate approval of a novel or unusual design feature. However, the FAA has found that the presence of non-rechargeable lithium batteries in certification projects is not always immediately identifiable, since the battery itself may not be the focus of the project. Meanwhile, the inclusion of these batteries has become virtually ubiquitous on in-production transport category airplanes, which shows that there will be a need for these special conditions. Also, delaying the issuance of special conditions until after each design application is received could lead to costly certification delays. Therefore, the FAA finds it necessary to issue special conditions applicable to these battery installations on particular makes and models of aircraft.

On April 22, 2016, the FAA published special conditions no. 25-612-SC in the Federal Register (81 FR 23573) applicable to Gulfstream Aerospace Corporation for the GVI airplane. Those were the first special conditions the FAA issued for non-rechargeable lithium battery installations. We explained in that document our decision to make those special conditions effective one year after publication in the Federal Register, which is April 22, 2017. In those special conditions, the FAA stated its intention to apply non-rechargeable lithium battery special conditions to design changes on other makes and models applied for after this same date.

Section 1205 of the FAA Reauthorization Act of 1996 requires the FAA to consider the extent to which Alaska is not served by transportation modes other than aviation and to establish appropriate regulatory distinctions when modifying airworthiness regulations that affect intrastate aviation in Alaska. In consideration of this requirement and the overall impact on safety, the FAA does not intend to require non-rechargeable lithium battery special conditions for design changes that only replace a 121.5 megahertz (MHz) emergency locator transmitter (ELT) with a 406 MHz ELT that meets Technical Standard Order C126b, or later revision, on transport airplanes operating only in Alaska. This will support our efforts of encouraging operators in Alaska to upgrade to a 406 MHz ELT. These ELTs provide significantly improved accuracy for lifesaving services to locate an accident site in Alaskan terrain. The FAA considers that the safety benefits from upgrading to a 406 MHz ELT for Alaskan operations will outweigh the battery fire risk.

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Dassault holds type certificate no. A50NM, which provides the certification basis for the Model Falcon 2000EX airplane. The Model Falcon 2000EX airplane is a twin engine, transport category airplane with a passenger seating capacity of 19 and a maximum takeoff weight of 40,700 to 42,800 pounds, depending on the specific design.

The FAA is issuing these special conditions for non-rechargeable lithium battery installations on the Dassault Model Falcon 2000EX airplane. The current battery requirements in title 14, Code of Federal Regulations (14 CFR) part 25 are inadequate for addressing an airplane with non-rechargeable lithium batteries.

Under the provisions of 14 CFR 21.101, Dassault must show that the Model Falcon 2000EX airplane meets the applicable provisions of the regulations listed in type certificate no. A50NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Dassault Model Falcon 2000EX airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the airplane model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Dassault Model Falcon 2000EX airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The novel or unusual design feature is the installation of non-rechargeable lithium batteries.

For the purpose of these special conditions, we refer to a battery and battery system as a battery. A battery system consists of the battery and any protective, monitoring, and alerting circuitry or hardware inside or outside of the battery. It also includes vents (where necessary) and packaging.

The FAA derived the current regulations governing installation of batteries in transport category airplanes from Civil Air Regulations (CAR) 4b.625(d) as part of the recodification of CAR 4b that established 14 CFR part 25 in February 1965. This recodification basically reworded the CAR 4b battery requirements, which are currently in § 25.1353(b)(1) through (4). Non-rechargeable lithium batteries are novel and unusual with respect to the state of technology considered when these requirements were codified. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.

Recent events involving rechargeable and non-rechargeable lithium batteries prompted the FAA to initiate a broad evaluation of these energy storage technologies. In January 2013, two independent events involving rechargeable lithium-ion batteries revealed unanticipated failure modes. A National Transportation Safety Board (NTSB) letter to the FAA, dated May 22, 2014, which is available at http://www.ntsb.gov, filename A-14-032-036.pdf, describes these events.

On July 12, 2013, an event involving a non-rechargeable lithium battery in an emergency locator transmitter installation demonstrated unanticipated failure modes. The United Kingdom's Air Accidents Investigation Branch Bulletin S5/2013 describes this event.

Some known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:

• Flight deck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater locator beacons, navigation computers, integrated avionics computers, satellite network and communication systems, communication management units, and remote-monitor electronic line-replaceable units;

• Cabin safety, entertainment, and communications equipment, including emergency locator transmitters, life rafts, escape slides, seatbelt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet and in-flight entertainment systems, satellite televisions, remotes, and handsets;

• Systems in cargo areas including door controls, sensors, video surveillance equipment, and security systems.

Some known potential hazards and failure modes associated with non-rechargeable lithium batteries are:

• Internal failures: In general, these batteries are significantly more susceptible to internal failures that can result in self-sustaining increases in temperature and pressure (i.e., thermal runaway) than their nickel-cadmium or lead-acid counterparts. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion.

• Fast or imbalanced discharging: Fast discharging or an imbalanced discharge of one cell of a multi-cell battery may create an overheating condition that results in an uncontrollable venting condition, which in turn leads to a thermal event or an explosion.

• Flammability: Unlike nickel-cadmium and lead-acid batteries, lithium batteries use higher energy and current in an electrochemical system that can be configured to maximize energy storage of lithium. They also use liquid electrolytes that can be extremely flammable. The electrolyte, as well as the electrodes, can serve as a source of fuel for an external fire if the battery casing is breached.

Special condition no. 1 of these special conditions requires that each individual cell within a non-rechargeable lithium battery be designed to maintain safe temperatures and pressures. Special condition no. 2 addresses these same issues but for the entire battery. Special condition no. 2 requires the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrollable increases in temperature or pressure from one cell to adjacent cells.

Special conditions nos. 1 and 2 are intended to ensure that the non-rechargeable lithium battery and its cells are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the battery designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.

Special conditions 3, 7, and 8 are self-explanatory.

Special condition no. 4 makes it clear that the flammable fluid fire protection requirements of § 25.863 apply to non-rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Non-rechargeable lithium batteries contain an electrolyte that is a flammable fluid.

Special condition no. 5 requires that each non-rechargeable lithium battery installation not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

While special condition no. 5 addresses corrosive fluids and gases, special condition no. 6 addresses heat. Special condition no. 6 requires that each non-rechargeable lithium battery installation have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat the battery installation can generate due to any failure of it or its individual cells. The means of meeting special conditions nos. 5 and 6 may be the same, but the requirements are independent and address different hazards.

These special conditions apply to all non-rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments. Those regulations remain in effect for other battery installations.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

These special conditions are applicable to the Dassault Model Falcon 2000EX airplane. Should Dassault apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

These special conditions are only applicable to design changes applied for after the effective date.

These special conditions are not applicable to changes to previously certified non-rechargeable lithium battery installations where the only change is either cosmetic or to relocate the installation to improve the safety of the airplane and occupants. Previously certified non-rechargeable lithium battery installations, as used in this paragraph, are those installations approved for certification projects applied for on or before the effective date of these special conditions. A cosmetic change is a change in appearance only, and does not change any function or safety characteristic of the battery installation. These special conditions are also not applicable to unchanged, previously certified non-rechargeable lithium battery installations that are affected by a change in a manner that improves the safety of its installation. The FAA determined that these exclusions are in the public interest because the need to meet all of the special conditions might otherwise deter these design changes that improve safety.

This action affects only certain a novel or unusual design feature on one model of airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Dassault Model Falcon 2000EX airplane.

In lieu of § 25.1353(b)(1) through (4) at Amendment 25-123 or § 25.1353(c)(1) through (4) at earlier amendments, each non-rechargeable lithium battery installation must:

1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.

2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure.

3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.

4. Meet the requirements of § 25.863.

5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition.

6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.

7. Have a failure sensing and warning system to alert the flightcrew if its failure affects safe operation of the airplane.

8. Have a means for the flightcrew or maintenance personnel to determine the battery charge state if the battery's function is required for safe operation of the airplane.

Authority for This Rulemaking

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 amends Class E airspace extending upward from 700 feet above the surface at Northeast Iowa Regional Airport, Charles City, IA, to support IFR operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 48010; October 16, 2017) for Docket No. FAA-2017-0949 to modify Class E airspace extending upward from 700 feet above the surface at Northeast Iowa Regional Airport, Charles City, IA. 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 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11B 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 modifies Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius (reduced from a 7-mile radius) of Northeast Iowa Regional Airport (formerly Charles City Municipal Airport), Charles City, IA, and updates the name of the airport to coincide with the FAA's aeronautical database.

Airspace reconfiguration is necessary due to cancellation of the instrument approach procedures associated with the decommissioned Charles City NDB, and to bring the airspace in compliance with FAA Order 7400.2L, Procedures for Handling Airspace Matters. Controlled airspace is necessary for the safety and management of IFR operations at this airport.

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, 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 qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. 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:

Under section 711 of the Civil Rights Act of 1964 (Title VII), which is incorporated by reference in section 105 of the Americans with Disabilities Act (ADA) and section 207 of the Genetic Information Non-Discrimination Act (GINA), and 29 CFR 1601.30(a), every employer, employment agency, labor organization, and joint labor-management committee controlling an apprenticeship or other training program covered by Title VII, ADA, or GINA must post notices describing the pertinent provisions of Title VII, ADA, or GINA. Such notices must be posted in prominent and accessible places where notices to employees, applicants, and members are customarily maintained.

The EEOC first adjusted the civil monetary penalty for violations of the notice posting requirements in 1997 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIA Act), 28 U.S.C. 2461 note, as amended by the Debt Collection Improvement Act of 1996 (DCIA), Public Law 104-134, Sec. 31001(s)(1), 110 Stat. 1373. A final rule was published in the Federal Register on May 16, 1997, at 62 FR 26934, which raised the maximum penalty per violation from $100 to $110. The EEOC's second adjustment, made pursuant to the FCPIA Act, as amended by the DCIA, was published in the Federal Register on March 19, 2014, at 79 FR 15220 and raised the maximum penalty per violation from $110 to $210.

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, Sec. 701(b), 129 Stat. 599, further amended the FCPIA Act, to require each federal agency, not later than July 1, 2016, and not later than January 15 of every year thereafter, to issue regulations adjusting for inflation the maximum civil penalty that may be imposed pursuant to each agency's statutes. The EEOC's initial adjustment made pursuant to the 2015 Act was published in the Federal Register on June 2, 2016, at 81 FR 35269 and raised the maximum penalty per violation from $210 to $525. The EEOC's second adjustment made pursuant to the 2015 Act was published in the Federal Register on January 31, 2017, at 82 FR 8812 and raised the maximum penalty per violation from $525 to $534. The purpose of the annual adjustment for inflation is to maintain the remedial impact of civil monetary penalties and promote compliance with the law. These periodic adjustments to the penalty are to be calculated pursuant to the inflation adjustment formula provided in section 5(b) of the 2015 Act and, in accordance with section 6 of the 2015 Act, the adjusted penalty will apply only to penalties assessed after the effective date of the adjustment. Generally, the periodic inflation adjustment to a civil monetary penalty under the 2015 Act will be based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the date of adjustment and the prior year's October CPI-U.

The adjustment set forth in this final rule was calculated by comparing the CPI-U for October 2017 with the CPI-U for October 2016, resulting in an inflation adjustment factor of 1.02041. The first step of the calculation is to multiply the inflation adjustment factor (1.02041) by the most recent civil penalty amount ($534) to calculate the inflation-adjusted penalty level ($544.89894). The second step is to round this inflation-adjusted penalty to the nearest dollar ($545). Accordingly, we are adjusting the maximum penalty per violation specified in 29 CFR 1601.30(a) from $534 to $545.

The Administrative Procedure Act (APA) provides an exception to the notice and comment procedures where an agency finds good cause for dispensing with such procedures, on the basis that they are impracticable, unnecessary, or contrary to the public interest. EEOC finds that under 5 U.S.C. 553(b)(3)(B) good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule because this adjustment of the civil monetary penalty is required by the 2015 Act, the formula for calculating the adjustment to the penalty is prescribed by statute, and the Commission has no discretion in determining the amount of the published adjustment. Accordingly, we are issuing this revised regulation as a final rule without notice and comment.

In promulgating this final rule, EEOC has adhered to the regulatory philosophy and applicable principles set forth in Executive Order 13563. Pursuant to Executive Order 12866, the EEOC has coordinated with the Office of Management and Budget (OMB). Under section 3(f) of Executive Order 12866, the EEOC and OMB have determined that this final rule will not have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. The great majority of employers and entities covered by these regulations comply with the posting requirement, and, as a result, the aggregate economic impact of these revised regulations will be minimal, affecting only those limited few who fail to post required notices in violation of the regulation and statue. The rule only increases the penalty by $11 for each separate offense, nowhere near the $100 million figure that would amount to a significant regulatory action.1 This rule is not an Executive Order 13771 regulatory action because the rule is not significant under Executive Order 12866.

The Paperwork Reduction Act (44 U.S.C. chapter 35) (PRA) applies to rulemakings in which an agency creates a new paperwork burden on regulated entities or modifies an existing burden. This final rule contains no new information collection requirements, and therefore, will create no new paperwork burdens or modifications to existing burdens that are subject to review by the Office of Management and Budget under the PRA.

The Regulatory Flexibility Act (5 U.S.C. 601-612) only requires a regulatory flexibility analysis when notice and comment is required by the Administrative Procedure Act or some other statute. As stated above, notice and comment is not required for this rule. For that reason, the requirements of the Regulatory Flexibility Act do not apply.

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Congressional Review Act (CRA) requires that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EEOC 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 the effective date of the rule. Under the CRA, a major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by the CRA at 5 U.S.C. 804(2).

Accordingly, the Equal Employment Opportunity Commission amends 29 CFR part 1601 as follows:

The OCSLA, at 43 U.S.C. 1350(b)(1), directs the Secretary of the Interior (Secretary) to adjust the OCSLA maximum civil penalty amount at least once every three years to reflect any increase in the Consumer Price Index (CPI) to account for inflation. On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (FCPIA of 2015) became law. The FCPIA of 2015 required Federal agencies to adjust the level of civil monetary penalties with an initial “catch-up” adjustment through rulemaking, if warranted, and then to make subsequent annual adjustments for inflation. Agencies were required to publish the first annual inflation adjustments in the Federal Register by no later than January 15, 2017, and must publish recurring annual inflation adjustments by no later than January 15 each subsequent year. The purpose of these adjustments is to maintain the deterrent effect of civil penalties and to further the policy goals of the underlying statutes.

BSEE last updated civil penalty amounts in BSEE regulations through a final rule (RIN 1014-AA34; 82 FR 9136), published and effective on February 3, 2017. Consistent with OMB guidance, BSEE's final rule (FR) implemented the adjustments required by the FCPIA of 2015 through October 2016.

The OMB Memorandum M-18-03 (Implementation of the 2018 annual adjustment pursuant to the FCPIA of 2015; [https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf]) explains agency responsibilities for: Identifying applicable penalties and performing the annual adjustment; publishing revisions to regulations to implement the adjustment in the Federal Register; applying adjusted penalty levels; and performing agency oversight of inflation adjustments.

BSEE is promulgating this 2018 inflation adjustment for civil penalties as a final rule pursuant to the provisions of the FCPIA of 2015 and OMB guidance. A proposed rule is not required because the FCPIA of 2015 states that agencies shall adjust civil monetary penalties “notwithstanding Section 553 of the Administrative Procedure Act.” (FCPIA of 2015 at section 4(b)(2)). Accordingly, Congress expressly exempted the annual inflation adjustments implemented pursuant to the FCPIA of 2015 from the pre-promulgation notice and comment requirements of the Administrative Procedure Act (APA), allowing them to be published as a final rule. This interpretation of the statute is confirmed by OMB Memorandum M-18-03. (OMB Memorandum M-18-03 at 4, “This means that the public procedure the APA generally requires—notice, an opportunity for comment, and a delay in effective date—is not required for agencies to issue regulations implementing the annual adjustment.”).

Under the FCPIA of 2015 and the guidance provided in OMB Memorandum M-18-03, BSEE has identified the applicable civil monetary penalty and calculated the necessary inflation adjustment. The previous OCSLA civil penalty inflation adjustment accounted for inflation through October 2016. The required annual civil penalty inflation adjustment promulgated through this rule accounts for inflation through October 2017.

Annual inflation adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U. Consistent with the guidance in OMB Memorandum M-18-03, BSEE divided the October 2017 CPI-U by the October 2016 CPI-U to calculate the multiplying factor. In this case, October 2017 CPI-U (246.663)/October 2016 CPI-U (241.729) = 1.02041. OMB Memorandum M-18-03 confirms that this is the proper multiplier. (OMB Memorandum M-18-03 at 1 and n.4.).

For 2018, OCSLA and the FCPIA of 2015 require that BSEE adjust the OCSLA maximum civil penalty amount. To accomplish this, BSEE multiplied the existing OCSLA maximum civil penalty amount ($42,704) by the multiplying factor ($42,704 × 1.02041 = $43,575.59). The FCPIA of 2015 requires that the resulting amount be rounded to the nearest $1.00 at the end of the calculation process. Accordingly, the adjusted OCSLA maximum civil penalty is $43,576.

The adjusted penalty levels take effect immediately upon publication of this rule. Pursuant to the FCPIA of 2015, the increase in the OCSLA maximum civil penalty amount applies to civil penalties assessed after the date the increase takes effect, even when the associated violation(s) predates such increase. Consistent with the provisions of OCSLA and the FCPIA of 2015, this rule adjusts the following maximum civil monetary penalty per day per violation:

Executive Order (E.O.) 12866 provides that the OMB Office of Information and Regulatory Affairs will review all significant rules. The OMB Office of Information and Regulatory Affairs (OIRA) has determined that this rule is not significant. (See OMB Memorandum M-18-03 at 3).

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 further emphasizes that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements, to the extent permitted by statute.

E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. E.O. 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. OIRA has determined that agency regulations exclusively implementing the annual adjustment are not significant regulatory actions under E.O. 12866, provided they are consistent with OMB Memorandum M-18-03 (See OMB Memorandum M-18-03 at 4); thus, E.O. 13771 does not apply to this rulemaking.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. (See 5 U.S.C. 603(a) and 604(a)). The FCPIA of 2015 expressly exempts these annual inflation adjustments from the requirement to publish a proposed rule for notice and comment. (See FCPIA of 2015 at section 4(b)(2); OMB Memorandum M-18-03 at 4). Thus, the RFA does not apply to this rulemaking.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(1) Does not have an annual effect on the economy of $100 million or more;

(2) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(3) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Therefore, a federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(1) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(2) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department of the Interior's consultation policy, under Departmental Manual Part 512 Chapters 4 and 5, and under the criteria in E.O. 13175. We have determined that it has no substantial direct effects on Federally-recognized Indian tribes or Alaska Native Claims Settlement Act (ANCSA) Corporations, and that consultation under the Department of the Interior's tribal and ANCSA consultation policies is not required.

This rule does not contain information collection requirements and a submission to the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because, as a regulation of an administrative nature, this rule is covered by a categorical exclusion (see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. Therefore, a detailed statement under NEPA is not required.

This rule is not a significant energy action under the definition in E.O. 13211. Therefore, a Statement of Energy Effects is not required.

For the reasons given in the preamble, the Bureau of Safety and Environmental Enforcement amends title 30, chapter II, subchapter B, part 250 Code of Federal Regulations as follows.

The OPA established a comprehensive regime for addressing the consequences of oil spills, ranging from spill response to compensation for damages to injured parties. Under Title I of the OPA, the responsible parties for any vessel or facility, including any offshore facility that discharges or poses a substantial threat of discharge of oil into or upon navigable waters, adjoining shorelines, or the exclusive economic zone, are liable for the removal costs and damages that result from such discharge or threat of discharge, as specified in 33 U.S.C. 2702(a) and (b). Under 33 U.S.C. 2704(a), however, the total liability of each responsible party is limited, subject to certain exceptions specified in 33 U.S.C. 2704(c). In 1990, the OPA provided that responsible parties for an offshore facility incident were liable for “the total of all removal costs plus $75,000,000.” (33 U.S.C. 2704(a)(3)).

To prevent the real value of the OPA limits of liability from declining over time as a result of inflation, and shifting the financial risk of oil spill incidents to the Oil Spill Liability Trust Fund (OSLTF), the OPA requires that the President adjust the limits of liability “not less than every three years,” by regulation, to reflect significant increases in the CPI. (33 U.S.C. 2704(d)(4)). This mandate, in place since 1990, preserves the deterrent effect and “polluter pays” principle embodied in OPA.

BOEM last adjusted for inflation the OPA offshore facility limit of liability for damages on December 12, 2014 (79 FR 73832). That 2014 rule updated the offshore facility limit of liability based on the Consumer Price Index All Urban Consumer (CPI-U) using the 2013 annual average CPI-U. The Bureau of Labor Statisitcs (BLS) has published the 2016 annual average CPI-U, which BOEM is using to calculate this three-year inflation adjustment for the offshore facility limit of liability.

BOEM is promulgating this rule pursuant to the provisions of Title I of OPA, Executive Order (E.O.) 12777, as amended, and BOEM regulations at 30 CFR part 553, subpart G—Limit of Liability for Offshore Facilities. A proposed rule is unnecessary, and BOEM thus has good cause for issuing this final rule under 5 U.S.C. 553(b), because the adjustment in the limit of liability is mandated by statute, the methodology for determining the amount is defined in BOEM's regulations, and those regulations at §§ 553.703(b)(4) and 553.704 provide that inflation adjustments to the offshore facilities limit of liability will be implemented through final rulemaking. The legislative and regulatory history for OPA limit of liability inflation adjustments can be found in the rulemaking preamble for the last inflation adjustment at 79 FR 73832.

The methodology for calculating the offshore facilities limit of liability inflation adjustment is provided in § 553.703.

Section 553.703(b)(2) requires that, not later than every three years from the year the limit of liability was last adjusted for inflation, BOEM will evaluate whether the cumulative percent change in the annual CPI since that year has reached a significance threshold of three percent or greater. BOEM's regulations specify Annual CPI-U as the appropriate mechanism by which to measure CPI. The limit of liability was last adjusted using the 2013 Annual CPI-U and BOEM has determined that the cumulative percent change in the Annual CPI-U since 2013 exceeds three percent. Therefore, as required by BOEM's regulations, BOEM must increase the offshore limit of liability for damages in § 553.702 by an amount equal to the cumulative percent change in the Annual CPI-U from the year the limit was last adjusted by regulation.

The formula for calculating a cumulative percent change in the Annual CPI-U provided in § 553.703(a) is as follows: The percent change in the Annual CPI-U = [(Annual CPI-U for Current Period − Annual CPI-U for Previous Period) ÷ Annual CPI-U for Previous Period] × 100. Using the BLS Annual CPI-U index numbers for 2013 and 2016, the calculation is: (240.007−232.957) ÷ 232.957 = 0.03026. Multiplying × 100 yields a cumulative percent change of 3.026 percent. Section 553.703(a) requires the cumulative percent change value to be rounded to one decimal place, resulting in a value of 3.0 percent.

Under § 553.703(c), BOEM calculates the adjustment to the offshore facilities limit of liability for inflation using the following formula: New limit of liability = Previous limit of liability + (Previous limit of liability × the decimal equivalent of the percent change in the Annual CPI-U), rounded to the closest $100. The calculation is: $133.65 million + ($133.65 million × 0.03) = $137.6595 million.

Therefore, BOEM is revising the regulations at § 553.702 to increase the limit of liability under OPA for a responsible party for any offshore facility, including any offshore pipeline, to the total of all removal costs plus $137.6595 million for damages with respect to each incident.

Further information regarding the CPI and the methodology used by the BLS to develop the CPI is available at: https://www.bls.gov/cpi/cpi_dr.htm#2017.

BOEM's regulations, at § 553.704, provide for a 90-day delay in the effective date of the adjustment to the limit of liability. Section 553.704 also provides that BOEM may, as part of a rule amending § 553.702, specify a different amount of time between the publication of the rule in the Federal Register and the effective date of that rule. The adjustment in the limit of liability is mandated by statute and the methodology for determining the amount of the update is defined in BOEM's regulations. Given that § 553.704 specifically allows other than a 90-day delay in effective date to be announced in this rule amending § 553.702, BOEM has determined that a 30-day delay in effective date is appropriate.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

This rule is an update to the offshore facility limit of liability under the OPA. It is neither a new regulation, nor does it increase the regulatory burden on regulated entities. This final rule simply maintains the value of the limit of liability set by the OPA in 1990 by updating the limit of liability for three years of inflation as required by the OPA at 33 U.S.C. 2704(d)(4).

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to reduce uncertainty and to promote predictability and the use of the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. The OPA statutory mandate does not give BOEM the discretion to reduce burdens or maintain freedom of choice.

E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. The E.O., however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. This rulemaking does not meet the definition for a significant regulatory action; thus, E.O. 13771 does not apply to this rulemaking.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule (see 5 U.S.C. 603(a) and 604(a)). Thus, the RFA does not apply to this rulemaking.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.

Implementation of this rule will not:

(a) Have an annual effect on the economy of $100 million or more;

(b) cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or

(c) result in significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on state, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Therefore, a federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

E.O. 13175 provides that tribal consultation is not necessary for regulations required by statute. Because this rule simply implements a statutory mandate, tribal consultation is not required by this Executive Order.

The Department of the Interior continually strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognizes their right to self-governance and tribal sovereignty. BOEM is also respectful of its responsibilities for consultation with corporations established pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq. (ANCSA).

BOEM has evaluated this rule under the consultation policy of the Department of the Interior in Chapters 4 and 5 of Series 512 of the Departmental Manual and has determined that this rule has no substantial direct effects on any Tribe or ANCSA Corporation, as defined in 512 DM 4.3 to include, among others, Federally-recognized Alaska Native tribes. On the basis of this evaluation, BOEM has determined that consultation is not necessary to comply with any DOI policy.

This rule does not contain information collection requirements, and a submission to the OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

A detailed environmental analysis under the National Environmental Policy Act of 1969 (NEPA) is not required if the rule is covered by a categorical exclusion (see 43 CFR 46.205). This final rule meets the criteria set forth at 43 CFR 46.210(i) for a Departmental Categorical Exclusion in that this final rule is “. . . of an administrative, financial, legal, technical, or procedural nature . . .” We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This rule is not a significant energy action under the definition in E.O. 13211. Therefore, a Statement of Energy Effects is not required.

For the reasons stated in the preamble, BOEM amends 30 CFR part 553 as follows:

I. Background

The Copyright Act gives the Register of Copyrights (the “Register”) the discretion to allow groups of related works to be registered with one application and one filing fee. See 17 U.S.C. 408(c)(1). Congress cited “a group of photographs by one photographer” as an example of a “group of related works” that would be suitable for a group registration. H.R. Rep. No. 94-1476, at 154 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975). When large numbers of photographs are grouped together in one application, however, information about the individual works may not be adequately captured. Group registration options therefore require careful balancing of the need for an accurate public record and the need for an efficient method of facilitating the examination of those works.

On December 1, 2016, the Copyright Office (the “Office”) published a Notice of Proposed Rulemaking (“NPRM”) setting forth proposed amendments to the current regulation governing the group registration option for published photographs (“GRPPH”), and proposing to create a new group registration option for unpublished photographs (“GRUPH”). See 81 FR 86643 (Dec. 1, 2016).

The NPRM described six major proposals. First, the proposed rule would require applicants to use a new online application specifically designed for registering a group of published photographs or a group of unpublished photographs, in lieu of using a paper application. Second, it would eliminate the “pilot program” that allows applicants to register an unlimited number of published photographs with the online application designed for registering one work.1 It also proposed to eliminate the registration accommodation that allows applicants to register an unlimited number of photographs as an “unpublished collection.” 2 Third, the proposed rule would limit the number of photographs that may be included within each application to no more than 750 photographs. Fourth, the NPRM provided that all of the photographs must be created by the same photographer (similar to the requirement that applies under the current regulation governing GRPPH), and further provided that the photographs must be published within the same nation. Fifth, the proposed rule would modify the deposit requirement for GRPPH, GRUPH, and photographic databases by requiring applicants to submit (i) a digital copy of each photograph,3 and (ii) a separate document containing a list of the titles and file names for each photograph. Finally, the NPRM confirmed that when a group of photographs is registered under GRPHH or GRUPH, the registration covers each photograph, each photograph is registered as a separate work, and “the group as a whole is not considered a compilation, [or] a collective work . . . under sections 101, 103(b), or 504(c)(1) of the statute.” 4

The Office received comments from several individuals, the Copyright Alliance,5 and the Coalition of Visual Artists,6 which consists of ten separate organizations that represent photographers, illustrators, designers, and other visual artists (“CVA”).7 The commenters generally supported the Office's proposal to eliminate the paper application and require applicants to submit their claims using an online application specifically designed for GRPPH and GRUPH.8 They welcomed the proposal to eliminate the “pilot program” for published photographs, and to replace the “unpublished collections” accommodation with a new group registration option for unpublished photographs.9 They also agreed that photographers should be entitled to claim a separate award of statutory damages for each photograph when they register their works under the GRPPH or GRUPH option.

Nearly all of the commenters objected to the proposed limit on the number of photographs that may be included in each claim. Some commenters said it would be difficult to determine if a particular photograph should be registered as a published or unpublished work. Some expressed concern that all of the photographs would have to be created by the same photographer and published in the same nation. Others expressed concern about the obligation to submit digital deposits. Finally, one commenter suggested that photographers should be entitled to seek the same legal remedies, regardless of whether they register their works using GRPPH, GRUPH, or the pilot program for photographic databases.

Having reviewed and carefully considered the comments, the Office now issues a final rule that closely follows the proposed rule, with some alterations based on these comments, which are discussed in more detail below.10

When this final rule goes into effect, applicants will be required to use the online applications designated for GRPPH and GRUPH. If an applicant attempts to use a paper application, the Office will refuse to register the claim. Applicants will be required to submit a digital copy of each photograph,11 either by uploading the photographs to the electronic registration system or by sending them to the Office on a physical storage device, such as a flash drive, CD-R, or DVD-R.12 In addition, applicants will be required to submit a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph in the group.

The Copyright Alliance supported this proposal, and predicted that online filing would “facilitate economy and efficiency.” Copyright Alliance Comment at 2. The CVA agreed that “[d]elivering images via the internet has become the norm for the majority of photographers and other visual artists,” and that “it is reasonable to require visual creators to submit deposit images in digital format.” CVA Comment at 6, 35. The CVA also agreed that uploading a list containing title and publication information would be preferable to the pilot program where applicants are expected to enter each title in the application one by one. CVA Comment at 34.

The CVA acknowledged that photographers who use traditional film often “reproduce or scan” their images and “deliver their work via electronic means.” CVA Comment at 6. The CVA also acknowledged that there are fee-based services available for photographers who need help completing the online application and submitting a digital deposit. CVA Comment at 6. However, the CVA and the Copyright Alliance expressed concern that some of these creators may have “vast archives” of photographs fixed in “traditional print media,” and they encouraged the Office to maintain the paper application for two-years to give these creators time to “catalog, archive, and register their works.” Copyright Alliance Comment at 2; CVA Comment at 7.

The Office recently issued a final rule for group registration of contributions to periodicals that addressed similar concerns. See 82 FR at 29412. As in that rule, a specific provision is being added to the regulations making clear that in an exceptional case, if photographers are unable to submit a digital copy of their works, they may request special relief and submit an actual copy of each photograph or other identifying material in lieu of a digital file. 37 CFR 202.20(d)(1)(iii)-(iv).

In addition, the Office is developing several new resources to ease the transition to the online filing requirement. The Office will prepare an online tutorial that explains how to use the new applications, and “help text” within the applications themselves that will provide answers to frequently asked questions. The Office will update the sections of the Compendium of U.S. Copyright Office Practices, Third Edition (“Compendium”) that discuss the Office's practices and procedures for group registration. The Office also intends to issue a new circular that will provide a general introduction to GRPPH and GRUPH. And as noted in the NPRM, the Office will contact each applicant that participated in the existing pilot program and notify them that this program has been replaced with a new procedure. 81 FR at 86647.

The NPRM proposed to limit the number of works that may be included in each submission to no more than 750 photographs. This would represent a change in policy. Currently applicants may submit an unlimited number of photographs if they register their works as an unpublished collection, or if they use the pilot program for published photographs. By contrast, if they use a paper application submitted on Form VA and Form GR/PPh/CON, they may include no more than 750 photographs in each claim.

The Copyright Alliance, the CVA, and three individuals objected to this proposal. They commented that the limit would be burdensome, because many photographers take thousands of photographs in a single day.13 They commented that photographers would have to pay more fees to register the same number of photographs as before, and that they would be unable to pass these additional fees on to their clients.14 Before imposing a limit on the number of photographs that may be registered under GRPPH or GRUPH, the commenters encouraged the Office to monitor the actual cost of examining these claims to determine if there is a substantial increase in the Office's workload. CVA Comment at 17.

After carefully reviewing the comments and weighing the issues involved, the Office has decided to adopt the 750 limit proposed in the NPRM. As mentioned above, the Office imposes the same limit when applicants use Form VA and Form GR/PPh/CON. That requirement has been in place since 2005. 70 FR 15587, 15588 (Mar. 28, 2005). Since the Office introduced the pilot program for published photographs in 2012, the Office has monitored the cost of examining claims submitted through the electronic registration system. Based on this experience, the Office has concluded that 750 is a reasonable limit for GRPPH and GRUPH given its current staffing levels, the current filing fee for these group registration options, and the technical capabilities of the current system.15

When the system is functioning properly, it takes approximately 15 to 30 minutes to examine a claim involving 750 photographs or fewer. By contrast, a claim involving more than 750 photographs typically requires an hour or more to complete. Applicants often fail to provide publication dates, they fail to list the dates in chronological order, or the dates provided in the application do not match the dates given in the deposit. If the applicant submits each photograph as an individual file, instead of uploading them in a .zip file, the examiner must click separate links to open each photograph. If any of the files are corrupt, the examiner must write to the applicant to request a new submission. The increasing work associated with these claims has had an adverse effect on the timeframe for examination of other types of works within the Visual Arts Division.

There also may be problems once the claim has been approved. The title field in the Office's public database will not accept more than 999 characters, but there is no corresponding limit in the registration application. When applicants submit more than 750 photographs, the information in the title files often exceeds these character limits. When this occurs, the Office must review each record one by one to identify the registration that was rejected by the system. Then the examiner must contact the applicant to request permission to amend the title field, he or she must update the record, and issue a new certificate.

Moreover, when applicants upload thousands of photos to the electronic registration system, it strains the system as a whole. This has an adverse effect on other applicants, because it delays the receipt of their submissions and it prevents the Office from issuing an email acknowledging the receipt of those claims. Many applicants then contact the Office's help desk to confirm that their submission was received, which places additional strains on the Office's limited resources.

Registering 750 photographs with the same application and the same filing fee represents a significant value and provides significant legal benefits. An applicant who submits the maximum number of photographs effectively would pay $0.07 to register each work under the current fee structure. As discussed below, the Office will examine each photograph in the group, and if the claim is approved, the registration covers each photograph and each photograph is registered as a separate work. Thus, if the photographs are subsequently infringed, the copyright owner should be entitled to seek a separate award of statutory damages for each individual photograph. See 17 U.S.C. 504(c)(1) (authorizing a separate award of statutory damages “with respect to any one work”).

The Visual Arts Division estimates that 75% to 80% of the applicants who register their works using the pilot program include fewer than 750 photographs in each claim. Thus, the final rule will not have an adverse effect on the vast majority of applicants. The Office recognizes that some applicants routinely include more than 750 works in each claim, and going forward, these applicants will need to file multiple applications instead of submitting all of their photographs with the same application. But it is important to recognize that the final rule does not impose any limit on the number of applications that may be submitted at a given time.

The CVA surveyed 1,744 photographers and asked them to identify the average number of photographs that they take in a single day and over the course of a single month. The vast majority of the respondents—70%—reported that they take fewer than 750 photos on an average day, while another 17% reported that they take between 751 and 1,500 photos on an average day. This presumably represents the average rate for a daily photo shoot, but it seems unlikely that the average photographer would create this many images on every day of the month. The CVA's survey supports this assumption. The results indicate that during an average month nearly half of the respondents—47%—would be able to register all the photos with four applications or fewer, and during a slow month, the majority of the respondents—61%—would be able to register all of their photos with one submission.

The CVA encouraged the Office to expand the scope of the group registration option by developing a tiered filing fee based on the number of photographs included within each claim, or a sliding-scale subscription model that would let photographers register an unlimited number of photographs with an annual, semi-annual, or quarterly filing fee. CVA Comment at 17. The Copyright Alliance and another individual expressed similar views. Copyright Alliance Comment at 3; Brian Powell Comment.

The Office welcomes these suggestions. But unfortunately, the current registration system is not capable of supporting this type of fee structure.

The Office, however, is beginning preparations for the initial development of its next generation registration system,16 and will take the commenters' suggestions into account in developing the business requirements for the new system. In the near future, the Office will be seeking additional comments and conducting extensive outreach to gather additional suggestions and recommendations for the new system.

Under the rule proposed in the NPRM, applicants would be able to register a group of unpublished photographs or a group of published photographs, but they would not be able to combine published and unpublished photographs in the same claim. See 81 FR at 86650. After considering the comments, the Office has decided to maintain this requirement in the final rule.

The CVA commented that it is difficult to separate published and unpublished photographs, in part, because photographers do not know if or when their images are published after they have been sent to a particular client. CVA Comment at 29. The Copyright Alliance expressed similar concerns. Copyright Alliance Comment at 3.

At the same time, however, the CVA and the Copyright Alliance acknowledged that the Copyright Act requires applicants to separately identify published and unpublished works for purposes of registration, and that this requirement cannot be changed without amending the law. CVA Comment at 29, 59; Copyright Alliance Comment at 3. Moreover, this distinction is firmly embedded in the current electronic registration system and the Office's internal processes. For example, when the Office issues a certificate of registration, the prefix assigned to the certificate begins with the letters VA if the work is published, and it begins with the letters VAu if the work is unpublished. If an applicant attempted to combine published and unpublished works in the same claim, the resulting registration number would be misleading. The Office may revisit this issue when it develops the business requirements for its new registration system, but for the time being, it is not feasible to ignore these distinctions within the context of the current system.

The CVA also commented that the photographers who participated in its survey would prefer to register all of the photographs that they create for a particular job, project, or client with the same application, regardless of whether those photographs are published or unpublished. CVA Comment at 31, 48-49. The final rule provides that flexibility. When registering a group of photographs under GRPPH or GRUPH, applicants will be asked to provide a title for the group as a whole. If a photographer wants to register the works he or she created for a particular client, the group title provides a convenient means for adding that information to the record. If a photographer needs to file separate applications for his or her published and unpublished photographs, the applicant may assign the same title to each application followed by the phrase “Group 1 of 3,” “Group 2 of 3,” and so on.

The CVA acknowledged that photographers should be able to determine if their photographs are published or unpublished if they are given proper guidance. CVA Comment at 31. The CVA and the Copyright Alliance also acknowledged that the Compendium provides useful information and asked the Office to make this document accessible from within the electronic registration system. CVA Comment at 29; Copyright Alliance at 3. As mentioned above, the Office intends to update the sections of the Compendium that discuss this group registration option, and it intends to add examples to explain the difference between published and unpublished photographs. In addition, the Office intends to prepare a new circular that summarizes the various options for registering photographs, and will provide links to these resources from within the help text for the new applications.

The NPRM proposed that all the photographs must be taken by the same photographer. If the photographs were created as works made for hire, the NPRM proposed that, in order to be eligible for group registration, all the photographs in the group must have been taken by the same employee, and the applicant must have identified both the employer and the employee in the application. To register photographs taken by different photographers, applicants would be required to submit a separate application for each individual. See 81 FR at 86649-50. Both of these proposals were based on the regulation that currently governs GRPPH.17 See 37 CFR 202.3(b)(10)(ii), (ix).

The CVA commented that commercial studios often use multiple photographers and assistants during each photo shoot, and that a shoot involving a particular job or client may occur on different dates. Given the way these studios operate, the CVA said it would be “impractical” to segregate their photographs into separate groups, and it would be “time consuming and expensive” to prepare a separate application for each photographer.18 CVA Comment at 26-27. One individual expressed similar concerns and suggested that applicants should be allowed “to include up to three photographers working under contract for a single copyright owner.” Eric Bowles Comment.

Section 408 of the Copyright Act authorizes the Register to “require or permit . . . a single registration for a group of related works.” 17 U.S.C. 408(c)(1). The statute indicates that the Register has “general authority” to determine whether “particular classes” of works are sufficiently related to warrant group registration. 17 U.S.C. 408(c)(1), (2). After considering the comments, the Office has determined that this requirement may be met if the photographs were created by the same “author” (a term that includes an employer or other person for whom a work is made for hire), if the works are owned by the same claimant, and in the case of published photographs, if the works were published in the same calendar year.19 Therefore, photographs can be included in one group even if they were created by different employees, as long as the photographs were created by the same author as works for hire.

The final rule does not represent a change in policy for most photographers. When an individual creates a photograph, that individual is considered the “author” of the work, and thus, the “author” and the “photographer” are the same person. But it does represent a change in policy for works made for hire. When a photograph is created as a work made for hire, the employer or commissioning party is considered the author and owner of the work, rather than the photographer who actually created the image. Thus, if the photographs were created as works made for hire, the applicant may name the employer or commissioning party as the author/claimant, instead of dividing the photographs into separate groups and submitting a separate application for each photographer.

For similar reasons, work-made-for-hire authors do not need to identify their employees in the application. However, the Office developed the new application before it decided to modify this requirement; as a result, the application contains a space where applicants may provide employee information. If the applicant checks the work made for hire box—but fails to complete the employee space—the application will not be accepted by the electronic registration system. The Office intends to remove this space in a future update to the system. In the meantime, work made for hire authors who are unwilling or unable to identify their employees may complete this portion of the application by stating that the individual photographer(s) are “not named in the application.” 20

When registering a group of published photographs, applicants should identify the author's country of citizenship or domicile, as well as the country where the photographs were published for the first time. The Office will use this information to determine if the photographs are eligible for registration under U.S. copyright law. 17 U.S.C. 104(b)(1)-(2); 409(2), (8).

The NPRM further proposed that all the photographs within each group should be published in the same country. 81 FR at 86650. This proposal was based on the current limitations of the electronic registration system. To identify the nation of publication in the current system, applicants must select from a list of countries appearing in a drop down menu, but the system will not allow applicants to select two or more countries from this list.

The CVA objected that photographers would need to prepare separate applications if their works are published in multiple countries. The CVA also noted that it may be difficult to determine where a photograph was published for the first time, particularly if the work was published online. CVA Comment at 32-33.

The Office did not include the single-country requirement in the final rule. In most cases, the Office should be able to determine if the photographs are eligible for copyright protection based on the author's citizenship or domicile. If the applicant is unable to establish eligibility based on this information, the Office may ask the applicant to confirm that the photographs were published in a country that has entered into a copyright treaty with the United States. If the photographs were published in different countries, the applicant may provide that information in the application in the “Note to Copyright Office” field.

The Copyright Alliance and the CVA agreed that photographers should be entitled to claim a separate award of statutory damages if they register their works under the GRPPH or GRUPH option. See Copyright Alliance Comment at 2; CVA Comment at 4. The Copyright Alliance also agreed that GRPPH and GRUPH would provide “more comprehensive and effective legal protections” than a registration for a photographic database, because photographers who register their works as part of a database would only be entitled to seek one award of statutory damages for the database as a whole. See Copyright Alliance Comment at 2. Although one member of the CVA disagreed with this view of the scope of a database registration,21 the Office continues to believe that the view it expressed in the NPRM is the correct one. See 81 FR at 86653-86654. Regardless, under the Copyright Act and the Office's regulations, a group registration of published photographs (GRPPH) or a group registration of unpublished photographs (GRUPH) will expressly be treated as a separate registration for each photograph that is included within the group, and applicants who wish to ensure the availability of separate statutory damages awards should select one of those group registration options.

The Copyright Alliance and CVA also asked the Office to create a new group registration option for other types of visual art works, such as illustrations, video clips, and textile designs. Alternatively, they asked the Office to create another pilot program that would allow visual artists to register groups of related works with the online application that is designed for registering one work. Copyright Alliance Comment at 2, 4; CVA Comment at 5, 8-9, 27, 46-47, 49, 51-52, 56, 60. The Office recognizes a need for establishing new and updated practices for examining and registering visual art works.22 The Office is considering these issues and will take them into account when developing its priorities for future upgrades to the electronic registration system.

The CVA also offered some suggestions for improving the current system. It encouraged the Office to improve the user interface, and allow applicants to populate each field with information stored in a spreadsheet or other database instead of entering it by hand. CVA Comment at 8. In addition, the CVA encouraged the Office to collaborate with third parties to develop apps and APIs that would help photographers register works directly from their cameras and photo editing programs. CVA Comment at 6, 36. The Office welcomes these suggestions. As mentioned above, the Office is in the early stages of developing the business requirements for its next generation registration system, and it will be seeking further comment on these issues in the future.

Finally, the CVA suggested that a registration for an unpublished work would be more effective if copyright owners could claim statutory damages and attorney's fees for any infringements occurring within three months before the effective date of registration (similar to the rule that applies to published works under section 412(2) of the Copyright Act). CVA Comment at 48. The CVA also suggested that the Office could create a “deferred examination” procedure, whereby the Office could issue a “provisional” registration after examining a sampling of the photographs in each group (similar to a provisional patent or intent to use trademark registration). If the photographer wanted to enforce the copyright in a particular photograph, he or she could ask the Office to conduct a “full” examination of that photograph for an additional fee. CVA Comment at 57-58.

The Office does not express any views on these suggestions, but simply notes that this rulemaking is not the proper forum in which to address them. The registration requirements CVA identified in its comments are part of the Copyright Act and the Office cannot expand or create exceptions to them as part of this rulemaking.

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

Table of Contents I. Background A. What are CERCLA and SARA? B. What is the NCP? C. What is the National Priorities List (NPL)? D. How are sites listed on the NPL? E. What happens to sites on the NPL? F. Does the NPL define the boundaries of sites? G. How are sites removed from the NPL? H. May the EPA delete portions of sites from the NPL as they are cleaned up? I. What is the Construction Completion List (CCL)? J. What is the Sitewide Ready for Anticipated Use measure? K. What is state/tribal correspondence concerning NPL Listing? II. Availability of Information to the Public A. May I review the documents relevant to this final rule? B. What documents are available for review at the EPA headquarters docket? C. What documents are available for review at the EPA regional dockets? D. How do I access the documents? E. How may I obtain a current list of NPL sites? III. Contents of This Final Rule A. Additions to the NPL B. What did the EPA do with the public comments it received? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act I. Background A. What are CERCLA and SARA?

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• The EPA determines that the release poses a significant threat to public health.

• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with a permanent remedy, taken instead of or in addition to removal actions” (40 CFR 300.5). However, under 40 CFR 300.425(b)(2), placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

In other words, while geographic terms are often used to designate the site (e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property (e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property (e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination, and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.

In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For more information on the CCL, see the EPA's internet site at https://www.epa.gov/superfund/construction-completions-national-priorities-list-npl-sites-number.

The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#tab-9.

In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the Web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's website at http://semspub.epa.gov/src/document/HQ/174024.

Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices. An electronic version of the public docket is available through https://www.regulations.gov (see table below for docket identification numbers). Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facilities identified in section II.D.

The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score and a list of documents referenced in the documentation record for each site.

The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.

You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. Please contact the regional dockets for hours. For addresses for the headquarters and regional dockets, see ADDRESSES section in the beginning portion of this preamble.

You may obtain a current list of NPL sites via the internet at https://www.epa.gov/superfund/national-priorities-list-npl-sites-site-name or by contacting the Superfund docket (see contact information in the beginning portion of this document).

This final rule adds the following four sites to the General Superfund section of the NPL. These sites are being added to the NPL based on HRS score.

The EPA is adding four sites to the NPL in this final rule. All four sites were proposed for NPL addition on August 3, 2017 (82 FR 36106). The sites are: Newark South Ground Water Plume in Newark, DE; American Creosote DeRidder in DeRidder, LA; Mississippi Phosphates Corporation in Pascagoula, MS; and, Eagle Industries in Midwest City, OK.

The EPA received no comments on the American Creosote DeRidder site. One comment was submitted to the Eagle Industries site docket, but that comment was unrelated to the site.

Two comments were received in support of the Newark South Ground Water Plume site. One resident that lives in Newark supported the EPA's efforts to clean up the site. The other comment was a resolution passed by the Newark City Council in support of NPL listing. The Newark South Ground Water Plume docket also received one comment that was unrelated to the proposed NPL listing.

The EPA received nine comments in support of the Mississippi Phosphates Corporation site. Seven of those comments were submitted from local citizens. Two comments that were submitted by local environmental groups expressed support for the addition of the site to the NPL and requested responses from the EPA on questions that did not pertain to the proposed NPL addition. The EPA will be communicating with those groups directly to answer their questions.

Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

This final rule does not have federalism implications. It will not have substantial direct effects 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.

This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983), and Bd. of Regents of the University of Washington v. EPA, 86 F.3d 1214,1222 (DC Cir. 1996), cast the validity of the legislative veto into question, the EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the Federal Register.

40 CFR part 300 is amended as follows:

This is a summary of the Commission's Order, FCC 17-159, MD Docket No. 17-357, adopted on December 1, 2017 and released on December 18, 2017. The full text of this document is available for public inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW, Washington, DC 20554, or by downloading the text from the Commission's website at http://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0906/FCC-17-111A1.pdf.

1. Section 603 of the Regulatory Flexibility Act, as amended, requires a regulatory flexibility analysis in notice and comment rulemaking proceedings. See 5 U.S.C. 603(a). As we are adopting these rules without notice and comment, no regulatory flexibility analysis is required.

2. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

3. The Commission will not send a copy of the Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties. See 5 U.S.C. 804(3)(C).

4. In the Order, we reduce expenditures by the Commission and modernize procedures by amending section 1.1105 of our rules, 47 CFR 1.1105, which sets forth the application fee for petitions filed with the FCC's Wireline Competition Bureau (WCB), to reflect the closure of the post office (P.O.) Box 1 used for manual filings with WCB. We require the use of an electronic payment system and, wherever possible, electronic filing. Consistent with this change, we also make conforming revisions to sections 0.401, 1.49, 1.51, 1.52, 1.742, 1.1105, 1.1111-1.1113, 1.1119, 51.329(c)(2), 61.13, 61.14, 61.17(d), and 61.20(b) of the Commission's rules, to account for electronic filing of fees, tariffs, petitions, and applications with the WCB, as described more fully below.

5. Section 1.1105 of the Commission's rules, 47 CFR 1.1105, has provided a schedule of processing fees for applications, tariffs, and petitions processed by the WCB. The rule had also directed filers, who do not utilize the Commission's on-line filing and fee payment systems, to send manual filings and payments to P.O. Box 979091 at U.S. Bank in St. Louis, Missouri.

6. The Commission has reduced its use of P.O. Boxes for the collection of fees and encouraged the use of electronic payment systems for all application and regulatory fees.2 We find that electronic payment of fees for applications, tariffs, and petitions processed by the WCB increases the agency's financial efficiency by reducing expenditures, including the annual fee for utilizing the bank's services as well as the cost to manually process each transaction, with little or no inconvenience to our regulatees, applicants and the public.3

7. As part of this effort, we are now closing P.O. Box 979091 and modifying the relevant rule provisions that require payment of fees and/or processing of filings via the closed P.O. Box. Our action here to close this lockbox and require electronic payments for any WCB-related fees, as well as encouraging the electronic filing of WCB-related petitions and applications, has implications for existing Commission regulations other than section 1.1105. Thus, we also revise sections 0.401, 1.49, 1.51, 1.52, 1.742, 1.1111, 1.1112, 1.1113, 1.1119, 51.329(c)(2), 61.13, 61.14, 61.17(d), and 61.20 of the Commission's rules. These additional rules are modified to eliminate references to P.O. Box 979091, encourage electronic filing of WCB related applications when practicable, and clarify where other filing rules only apply to paper filings to avoid confusion. For instance, sections 61.13, 61.14, 61.17(d) and 61.20(b) of our rules are revised to require carriers to utilize the electronic filing process for all tariff publications and related documents whenever practicable, and directs manual filers to the web page of the FCC's Office of the Secretary for procedures for submitting hard copies. The rule changes are contained in the Appendix of the Order. We make these changes without notice and comment because they are rules of agency organization, procedure, or practice exempt from the general notice-and-comment requirements of the Administrative Procedure Act, see 5 U.S.C. 553(b)(A).

8. Implementation. As a temporary transition measure, for 90 days after publication of this document in the Federal Register, payments and paper filings to P.O. Box 979091 will continue to be processed by U.S. Bank. After that date, payments for any WCB-related fee or service must be made in accordance with the procedures set forth on the Commission's website, https://www.fcc.gov/licensing-databases/fees. For now, such payments will be made through the Fee Filer Online System (Fee Filer), accessible at https://www.fcc.gov/licensing-databases/fees/fee-filer. As we assess and implement U.S. Treasury initiatives toward an all-electronic payment system, we may transition to other secure payment systems with appropriate public notice and guidance. To file applications, tariffs and petitions processed by the WCB, parties should utilize, as applicable, the Commission's Electronic Tariff Filing System for tariffs, which can be found at https://apps.fcc.gov/etfs/etfsHome.action, or the Electronic Comment Filing System (ECFS) for domestic 214 and other filings referenced in section 1.1105, which can be found at http://apps.fcc.gov/ecfs/upload/display. Petitions filed in hard copy format should be submitted according to the procedures set forth on the web page of the FCC's Office of the Secretary, https://www.fcc.gov/secretary.

9. Accordingly, it is ordered, that pursuant to sections 4(i), and 4(j) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), the Order is hereby ADOPTED and the rules set forth in the Appendix of the Order are hereby AMENDED effective February 20, 2018.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 1, 51, and 61 as follows:

This is a summary of the Commission's Order in PS Docket No. 15-94, FCC 17-170, adopted and released on December 14, 2017. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-1257), 445 12th Street SW, Washington, DC 20554, or online at: https://www.fcc.gov/document/fcc-adds-blue-alerts-nations-emergency-alert-systems-0.

1. The Order adds to Part 11 EAS rules a new dedicated EAS event code, to advance the important public policy of protecting our nation's law enforcement officials and the communities they serve. This Order adopts the three-character B-L-U to enable the delivery of Blue Alerts over the EAS and WEA. This will promote the development of compatible and integrated Blue Alert plans throughout the United States, consistent with the Rafael Ramos and Wenjian Liu National Blue Alert Act of 2015 (Blue Alert Act), and support the need for a dedicated EAS event code for Blue Alerts identified by the Office of Community Oriented Policing Services (COPS Office) of the United States Department of Justice (DOJ).

2. The EAS is a national public warning system through which broadcasters, cable systems, and other service providers (EAS Participants) deliver alerts to the public to warn them of impending emergencies and dangers to life and property. Although the primary purpose of the EAS is to equip the President with the ability to provide immediate information to the public during periods of national emergency, the EAS is also used by the National Weather Service (NWS) and state and local governments to distribute voluntary alerts such as weather-related and child abduction (AMBER) alerts. EAS uses three-character event codes to identify the various elements, so that each can deliver accurate, secure, and geographically-targeted messages to the public, in text crawls and in the audio portion of EAS alerts (e.g., TOR for Tornado).

3. In 2015, Congress enacted the Blue Alert Act to “encourage, enhance, and integrate Blue Alert plans throughout the United States,” thus facilitating the dissemination of information in a consistent manner nationwide when a law enforcement officer is seriously injured, killed or missing in the line of duty. The Blue Alert Act directs the Attorney General to establish a national Blue Alert communications network within DOJ to issue Blue Alerts, using plans that would be adopted in coordination with “States, units of local government, law enforcement agencies, and other appropriate entities.” In September 2016, the Attorney General assigned the COPS Office within DOJ to be the National Blue Alert Coordinator.

4. The COPS Office filed two reports with Congress to demonstrate how it was implementing the Blue Alert Act's mandate. In its 2016 Report to Congress, the COPS Office identified “the need to promote formal communication mechanisms between law enforcement agencies for Blue Alert information, the need for a dedicated Emergency Alert System (EAS) event code, and the need to increase public and law enforcement awareness of the Blue Alert Act.” In its 2017 Report to Congress, the COPS Office noted that it had commenced outreach efforts with the FCC to pursue a dedicated Blue Alert EAS event code, and asked the FCC to consider conducting an expedited rulemaking to the extent feasible.

5. The COPS Office established voluntary guidelines for the issuance of Blue Alerts based on the criteria contained in the Blue Alert Act (Blue Alert Guidelines). The Blue Alert Guidelines identify who may request the issuance of a Blue Alert, when a Blue Alert may be issued, and the requisite content thereof. Specifically, a Blue Alert may be issued only when a request is made by a law enforcement agency having primary jurisdiction over the incident, and one the following three threshold criteria has been met: (1) Death or serious injury of a law enforcement officer in the line of duty; (2) threat to cause death or serious injury to a law enforcement officer; or (3) a law enforcement officer is missing in connection with official duties. If a Blue Alert is based upon the first of the criteria, the law enforcement agency must confirm that a law enforcement officer has been killed, seriously injured, or attacked, and there are indications of death or serious injury. If a Blue Alert is based upon the second of the criteria, the law enforcement agency must confirm that the threat is “imminent and credible,” and at the time of receipt of the threat, any suspect involved is wanted by a law enforcement agency. Finally, if a Blue Alert is based upon the third criteria, the agency must have concluded that there is indication of serious injury to, or death of the missing law enforcement officer. In all cases, the agency must confirm that any suspect involved has not been apprehended and there is sufficient descriptive information of the suspect, including any relevant vehicle and license tag information. The COPS Office also recommends that Blue Alerts be focused on the geographic areas most likely to facilitate the apprehension of the suspect, and the message include the suspect's last known location, direction of travel, and possible destination.

6. On June 22, 2017, the FCC released the Blue Alert NPRM, proposing to revise the EAS rules to adopt BLU to allow the transmission of Blue Alerts to the public over the EAS, satisfying the need articulated by the COPS Office for a dedicated EAS event code to facilitate broader dissemination of the requisite information.

7. The EAS is an Effective Mechanism to Deliver Blue Alerts. The Order finds—as supported by most commenters—that the EAS is an effective mechanism for the delivery of Blue Alerts. The City of New York (NYC) and the National Association of Broadcasters (NAB) observe that issuing a Blue Alert via the EAS will provide the public with the opportunity to protect themselves and their families and to report relevant information to law enforcement, thus facilitating the apprehension of suspects who are alleged to pose an imminent threat to law enforcement officers. NCTA—The internet & Television Association (NCTA) and the American Cable Association (ACA) agree that adding Blue Alerts to EAS will advance the important public policy of protecting our nation's law enforcement officials, as does the National Public Safety Telecommunications Council (NPSTC), which states that both the EAS and WEA should be available tools to help provide Blue Alerts to the public.

8. The Order also finds that it is technically feasible to send Blue Alerts using the EAS. As NYC and broadcaster engineer Sean Donelan (Donelan) observe, the information required by the Blue Alert Guidelines can be successfully communicated within the two-minute period to which EAS alerts are limited. Similarly, the Commission agrees with the Association of Public-Safety Communications Officials-International, Inc. (APCO) and NYC that EAS Blue Alerts should be focused to an appropriately narrow geographic area, and find that the transmission of EAS alerts satisfies the requirement that a Blue Alert be “limited to the geographic areas most likely to facilitate the apprehension of the suspect involved or which the suspect could reasonably reach” and “[is] not . . . limited to state lines.” The Order disagrees with the assertion of McCarthy Radio Enterprises, Inc. to the contrary. EAS alerts are issued using county-based Federal Information Processing Standards (FIPS) codes, and may be issued to include multiple counties within a state or across state borders, depending on the geographic scope of the emergency prompting the alert. The Commission believes that this level of geographic targeting is consistent with effective delivery of Blue Alerts, given the type of potentially mobile suspect that would be the subject of many Blue Alerts. The Order agrees with Donelan that a suspect's movements in the circumstances that would give rise to a Blue Alert likely would be similar to that of a suspect in AMBER Alert circumstances, where suspects may travel hundreds of miles within a few hours.

9. The Order also agrees with commenters such as NYC that EAS Blue Alerts sent via the Integrated Public Alert and Warning System (IPAWS) can support transmission of the detailed information required by the Blue Alert Guidelines. As the Commission acknowledged in the Blue Alerts NPRM, EAS alerts delivered over IPAWS use the IP-based Common Alerting Protocol (CAP) to deliver alerts with detailed text files, non-English alerts, or other content-rich data that would not be available to EAS alerts delivered via the broadcast-based daisy chain. As NYC and NPSTC note, EAS-based Blue Alerts that provide such detailed information will greatly improve the ability of the public to recognize and avoid an unsafe situation. The Order accordingly urges alert originators to initiate Blue Alerts via IPAWS and recommends that alert originators include detailed information as part of each Blue Alert for which it is available. The Order notes that EAS Participants are required to create video crawls based upon the enhanced text contained within the CAP message. The Order agrees with the COPS Office's recommendation that the last known location, direction of travel, and possible destinations of the suspect be included as part of the alert message. The Commission believes that these steps, in combination with training, will allow Blue Alert originators to address the concerns raised by the Boulder Regional Emergency Telephone Service Authority (BRETSA) and other commenters that frequent, repeated, misused, or overly long alerts can result in recipients “tuning out” alerts and even disabling alerts on their devices.

10. The Commission believes that Blue Alerts delivered via the broadcast EAS continues to be an effective mechanism for the delivery of Blue Alerts. Concerns about the relative value of IPAWS-based, as opposed to daisy chain-based, EAS alerts are not unique to Blue Alerts. For example, AMBER Alerts are subject to the same technical limitations, potentially providing the public with an alert from the daisy chain that lacks the descriptive information about the victim that an IPAWS-based alert would provide. The Order agrees with commenters that concerns that arise from these technical limitations are mitigated because the public is likely to learn adequate information about an emergency and, as needed, check other media for additional information after receiving an alert. Further, EAS messages delivered via the broadcast daisy chain can supply life-saving information and may act as a source of redundancy for portions of the EAS that draw on the advanced capability of CAP. Accordingly, the Order concludes that the mere fact of any discrepancy between the information provided by an IPAWS-based EAS Blue Alert and a broadcast-based EAS Blue Alert is not sufficient reason to deny potentially life-saving information to all members of the public.

11. Nonetheless, the Order encourages EAS manufacturers and EAS Participants to take technical steps to facilitate the delivery of IPAWS-based EAS Blue Alerts to the public where an alert is first delivered to an EAS Participant via broadcast. The Order notes that Monroe Electronics, Inc. (Monroe) and other commenters propose that the Commission permit “triggered CAP polling,” by which the EAS device would automatically poll IPAWS upon receipt of a broadcast EAS message to verify whether a corresponding CAP message exists, and if it does, use the CAP message instead of the broadcast EAS message. The part 11 EAS rules do not bar EAS Participants from triggered CAP polling.1 Because triggered CAP polling is estimated to require a “few seconds” to complete, the Order finds that its use in these instances is consistent with Section 11.51(n) of the EAS rules, which allows EAS Participants to employ a delay of up to 15 minutes before interrupting their programming and retransmitting EAS voluntary event codes.

12. A Dedicated Blue Alert EAS Event Code is in the Public Interest. The Commission determined that it would serve the public interest and promote the purpose of the Blue Alert Act to adopt a dedicated EAS event code for Blue Alerts. Accordingly, the Order amends Section 11.31(e) of the EAS rules to create and add the dedicated BLU event code to the EAS Protocol for Blue Alerts. The Commission agrees with the COPS Office that a dedicated EAS event code would “convey the appropriate sense of urgency” and “galvanize the public awareness necessary to protect law enforcement officers and the public from extremely dangerous offenders.” The Commission also agrees with the COPS Office that no existing EAS event code is adequate or acceptable to accomplish the objectives of the Blue Alert Act.

13. The conclusion in the Order is supported by the NPSTC and others that agree that a dedicated BLU event code is well suited to serve as the central organizing element for Blue Alert plans nationally. As APCO notes, a dedicated code would facilitate consistent operations and terminology within the National Blue Alert Network, as called for by the Blue Alert Act. Similarly, NYC and NAB agree that establishing this dedicated EAS event code to deliver Blue Alerts would help facilitate the delivery of Blue Alerts to the public in a uniform and consistent manner. The Commission also agrees with NYC that a dedicated code would lead state and local alert originators to engage relevant stakeholders to operationalize the steps necessary to issue a Blue Alert.

14. Further, the Commission is persuaded by the COPS Office that an EAS event code solely dedicated to Blue Alerts would “facilitate and streamline the adoption of new Blue Alert plans throughout the nation and would help to integrate existing plans into a coordinated national framework.” The recommendation by the COPS Office is supported by its extensive outreach to U.S. States and territories. According to the COPS Office, twenty-eight states operate Blue Alert systems, and twenty-eight states and territories do not. In its 2017 Report to Congress, the COPS Office noted the inconsistency of plans from state to state and the negative consequences that have arisen as a result. Specifically, according to the 2017 Report to Congress, “the lack of such a resource [i.e., a dedicated EAS event code] affected jurisdictions' ability to communicate within states and across the country. Even in states with established Blue Alert plans, it was often difficult to identify important points of contact necessary for alert activation or interstate coordination.” The Commission thus agrees with the COPS Office that implementation of a dedicated Blue Alert EAS code could ease the burden of designing a consistent model for Blue Alert plans, and thus encourage states that do not have Blue Alert plans to establish one.

15. The Order also concludes that the three-character BLU EAS event code, rather than a currently existing EAS code, would help ensure that both Blue Alerts and related outreach and training are undertaken in a consistent manner nationally. The Commission agrees with NYC that using the BLU code would allow for pre-scripted, standardized on-screen text that is more descriptive than the existing categories, and would serve to socialize the Blue Alert concept with the public, much like the AMBER Alerts have done for years. The Commission is also persuaded that a dedicated event code with consistent national standards would allow Federal, state, and local authorities to create consistent training programs for alert originators, as well as public service announcements, ad campaigns, and informational material that would serve to educate the public ahead of time.

16. The Order disagrees with commenters that Blue Alerts should extend beyond law enforcement officers to include all uniformed first responders, including firefighters and paramedics. The stated purpose of the Blue Alert Act is to “encourage, enhance, and integrate Blue Alert plans throughout the United States to disseminate information when a law enforcement officer is seriously injured or killed in the line of duty, is missing in connection with the officer's official duties, or an imminent and credible threat that an individual intends to cause the serious injury or death of a law enforcement officer is received.” The Commission agrees with the COPS Office that Commission action should not extend beyond the Congressional mandate by including parties other than law enforcement officers. Such action would fall outside the scope of the Blue Alert Act, which limits Blue Alerts to a “law enforcement officer.”

17. Similarly, the Order finds that existing EAS codes LEW (Law Enforcement Warning), LAE (Local Area Emergency), and CEM (Civil Emergency Message) would not be as effective as a BLU event code. The Commission agrees with the COPS Office that the absence of a dedicated BLU event code requires states and local law enforcement agencies to use one of the existing generic event codes in an ad hoc manner and that existing event codes such as LEW are inadequate. NAB also notes that there is confusion about the true nature or severity of an emergency when LEW is used. The record supports the conclusion by the COPS Office that there is a lack of urgency associated with the existing LEW, LAE and CEM event codes because they are sometimes used for matters that do not suggest the need for immediate action. For example, the COPS Office observes that LEW alerts address a broad array of matters including police activity, weather-related incidents, road hazards, missing persons, and other miscellaneous alerts. Similarly, LAE and CEM alerts are more varied than LEW, as they additionally include alerts addressing utility issues and fire hazards. The Order does not address the efficacy of such multiple uses for LEW, LAE, and CEM, but do agree with the COPS Office that the broad use of these event codes make them inappropriate for use as the Blue Alert event code. The Commission agrees with the COPS Office that using LEW, LAE, or CEM for Blue Alerts would create confusion, as instructions for different situations can be contradictory and the public would not know what kind of action to take based on the event code alone. As the Commission found in the NWS Report and Order proceeding, the public interest is not served by relying on inadequate warnings that might provide incorrect or even opposite remedial advice to the public. The Order finds that Blue Alerts have a purpose that is sufficiently unique and well defined (as compared to the circumstances that have prompted the use of other codes) to warrant a unique dedicated BLU event code, which could serve as a vital tool” for “protect[ing] law enforcement officers and the communities they serve.”

18. WEA Delivery of Blue Alerts. Although the COPS Office limited its request to an EAS event code for Blue Alerts, Blue Alerts are also capable of delivery over WEA as that system is currently configured. Moreover, incidents that qualify for the initiation of a Blue Alert under the Blue Alert Guidelines would also satisfy the minimum requirements for initiation of an “Imminent Threat” Alert via WEA. Accordingly, the Order permits Blue Alerts to be deployed via WEA using existing alerting methodologies and consistent with our WEA rules.

19. NYC suggests that Blue Alerts use the Imminent Threat Alert classification only as a temporary measure until such time that a dedicated WEA message classification for Blue Alerts can be developed and deployed. NYC is concerned that the existing pre-scripted text for Imminent Threat Alert is “overly vague,” lacks capabilities for “alert originators entering free form text” or “Blue Alert-specific pre-scripted text,” and “can lead to public confusion and/or panic.” Although NYC's concerns are somewhat mitigated by the evidence in the record that alert originators can use message “templates” that could be used for different Blue Alert scenarios, the Commission believes the issue merits further study. The Commission sought comment in the Blue Alert NPRM on the extent to which additional guidance or direction would be helpful regarding how Blue Alerts should be classified for purposes of WEA. Although the Commission declines to adopt a separate classification for WEA Blue Alerts at this time, the Order leaves this aspect of the issue teed up in the Blue Alert NPRM pending, and keeps the above-captioned docket open, to help gather additional information on this issue beyond what the record currently contains, including further comment from those interested on potential implementation steps, time frame, and costs, until sixty days after the date of publication of this Order in the Federal Register. In the meantime, the Order finds that issuance of Blue Alerts using WEA's existing standards and structures at least as a temporary measure will be effective, will reduce the necessary time for Blue Alerts to become available on WEA, and will reduce the costs to WEA stakeholders.

20. Implementation Schedule. In the Blue Alert NPRM, the Commission sought comment on the proposal that EAS equipment manufacturers should integrate the Blue Alert event code into equipment yet to be manufactured or sold, and make necessary software upgrades available to EAS Participants, no later than six months from the effective date of the final rule. This proposal was based on the Commission's experience with the NWS Report and Order proceeding, in which the Commission required a similar schedule for implementation of severe weather-related EAS event codes. In the Blue Alert NPRM, the Commission likewise noted that adding a BLU EAS event code would trigger technical and public safety requirements regarding equipment readiness that were similar to those discussed in the NWS Report and Order proceeding.

21. The Order encourages stakeholders to work together voluntarily to implement Blue Alerts as swiftly as possible in light of the important public safety objectives involved. The Commission recognizes, however, the record reflects that some time is necessary for equipment manufacturers and Participating Commercial Mobile Service (CMS) Providers to prepare their equipment and networks to be able to process any Blue Alerts that are sent over EAS and WEA, as well as for alert originators, EAS Participants, and other stakeholders to have the necessary training and resources to deliver Blue Alerts to the public if they choose to do so. Accordingly, the Order allows a period of 12 months from the effective date of this rule to enable the delivery of Blue Alerts over EAS, and a period of 18 months from the effective date of this rule to enable the delivery of Blue Alerts over WEA. This implementation schedule will ensure all stakeholders have sufficient time to address any technical, resource, and training needs they may require to ensure the successful delivery of Blue Alerts.

22. Although NYC states that six months is sufficient time for EAS equipment manufacturers to release the necessary software upgrades for a dedicated Blue Alert event code, other commenters suggest more time is warranted for implementation of Blue Alerts for both EAS and WEA. NCTA states that the Commission should work with EAS manufacturers to determine the adequacy of the time allocated for software upgrades to equipment. EAS equipment manufacturers Monroe and Sage Alerting Systems (Sage) state that 12 months is sufficient to allow for the new event code to be deployed within a scheduled in-version equipment software update, resulting in no incremental cost to EAS Participants, rather than as a scheduled major version upgrade that would have to be separately purchased. Broadcaster Adrienne Abbott (Abbott) states that EAS stakeholders have additional needs that must be met to ensure the successful delivery of Blue Alerts (e.g., the updating of EAS Plans to accommodate the use of the new code, time for Councils of Governments (COGs) to add the Blue Alert Event Code to their list of approved codes, and public awareness campaigns to be conducted to raise awareness and understanding of Blue Alerts). The record, however, does not support Abbott's contention that this entire process will require two years to complete. For the reasons described in this Order and the earlier NWS Report and Order, the Commission's experience tells us that this process can occur in parallel with the development and deployment of EAS equipment software updates and can be accommodated within a 12-month period. Participating CMS Providers have requested 18 months to complete the incorporation of pending standards into their networks and devices that will enable the delivery of Blue Alerts as Imminent Threats over WEA, such as modification of the “C-interface,” the secure interface that exists between IPAWS and commercial mobile service provider gateways. In connection, NYC acknowledges that “a longer implementation timeframe is likely necessary for the wireless industry.” Based on the record, the Commission believes that a 12-month implementation period for EAS and an 18-month implementation period for WEA will provide all stakeholders adequate time to ensure that the necessary equipment upgrades, software updates, development, and testing are completed to enable the delivery of Blue Alerts over EAS and WEA as contemplated by this Order.

23. The Blue Alert NPRM proposed to allow EAS Participants to upgrade their equipment to add a designated Blue Alert event code on a voluntary basis until their equipment is replaced, which is the same approach the Commission has taken when it has adopted other new EAS event codes in the past. The Order adopts a modified version of this proposal and permit EAS Participants to update their software to add the BLU event code on a voluntary basis. All EAS Participants should be able to add the BLU event code using a software upgrade because, as of July 30, 2016, all EAS Participants should have equipment in place that is capable, at the minimum, of being upgraded by software to accommodate EAS modifications, and thus, the need to upgrade existing equipment no longer appears to be necessary. The Order also agrees with NCTA that permitting software upgrades on a voluntary basis is a “sensible and effective” approach to adopting a new event code, and with ACA, which notes that this approach “appropriately balances the public's interest in the safety and well-being of law enforcement officials against the costs of implementing new EAS codes.” The Order disagrees with the NYC argument that allowing EAS Participants to upgrade their software on a voluntary basis undermines the creation of a cohesive national Blue Alert system. As the Commission observed in the NWS Report and Order, the use by EAS Participants of these codes is and has always been voluntary, and “it would be contrary to the voluntary nature of state and local EAS to mandate upgrades to existing EAS equipment to incorporate new optional event codes.” As the Order discusses below, the Commission also finds that this approach will significantly reduce the costs to EAS Participants.

24. Cost and Benefit Analysis. The Order concludes that the benefits of implementing BLU outweigh its cost. The Commission acknowledges as it did in the Blue Alert NPRM, the COPS Office's guidance and expertise regarding the potential benefits of Blue Alerts. The Order also draws on the Commission's experience with the implementation of new EAS codes. The Order finds that most of the potential costs of implementation arise from software updates made outside of the normal course of planned upgrades. The Order allows sufficient time and flexibility to allow manufacturers and EAS Participants make upgrades, and to conduct associated testing in tandem with general software upgrades installed during the regular course of business, thus minimizing costs. The rule adopted in the Order presents many potential benefits by keeping the public informed, out of harm's way, and enlisting their aid to more quickly apprehend dangerous suspects as well as reducing the cost for 911 call centers and emergency responders.

25. Costs. The Order finds, as suggested in the Blue Alert NPRM, that the main cost to EAS Participants that elect to install BLU will be the cost involved in downloading the software updates into their devices, and conducting associated testing. The Blue Alert NPRM found that adopting a Blue Alert EAS event code presents similar technical issues to those raised in the NWS Report and Order, and, accordingly, tentatively concluded that the costs for adding a dedicated Blue Alert EAS event code would not exceed a one-time $3.5 million implementation ceiling. In the NWS Report and Order proceeding, Monroe Electronics indicated that the new event codes could be implemented through a software update downloaded from its website, while Sage Alerting Systems indicated that end users could implement event codes in 10 minutes or less, at no cost other than labor. The NWS Report and Order used a worst-case cost figure of $125.00 per device, allowing five hours of labor to be spent by each of the 28,058 broadcasters and cable companies, resulting in a cost ceiling of $3.5 million. The Order adopts the Commission's tentative conclusion in the Blue Alert NPRM, and find that a dedicated Blue Alert EAS event code would not exceed a one-time $3.5 million implementation cost. The Order notes that EAS Participants can avoid most incremental implementation costs by downloading the new Blue Alert code in conjunction with a scheduled software update. Although the Order recognizes that EAS equipment manufacturers will incur some costs in making the new event code available to all EAS Participants, the Commission believes that 12 months will provide sufficient time to dovetail the BLU upgrade with other scheduled upgrades, posing minimal expense to equipment manufacturers. The Commission believes that the costs for implementation of WEA will be similarly low, because Blue Alerts will be delivered over the existing Imminent Threat WEA classification, using WEA in its current configuration. As such, the Commission believes there will be no incremental costs associated with the delivery of Blue Alerts over WEA, and that the 18 months granted in the Order to Participating CMS Providers is sufficient to allow providers to minimize the costs of deployment.

26. Benefits. The Order anticipate that establishing the BLU event code will improve emergency alerting during events described in the Blue Alert Guidelines, thereby helping to keep people safe from harm. The Order agrees with the COPS Office that existing codes, such as LEW, cannot effectively identify Blue Alerts to the public. While precise numerical estimation is not possible, the Commission expects that the BLU event code will improve public safety by saving lives and preventing injuries. One way of measuring the value of lives saved is the value of a statistical life (VSL), currently estimated at $9.6 million. Accordingly, if the BLU code is expected to save at least one life, its value would be at least $9.6 million, which far exceeds the one-time $3.5 million implementation cost ceiling. This expected benefit is consistent with statistics from the Federal Bureau of Investigation's Uniform Crime Reporting Program, which state that 66 officers were killed in the line of duty in 2016. The Commission believes that at least some portion of these crimes would have qualified for a Blue Alert and could have led to lives saved, quicker apprehension of the suspect, or both. The Order notes the success of AMBER Alerts, where 43 out of the 179 abducted children reported in 2017 were saved as a direct result of AMBER Alerts. It is reasonable to expect that the life of at least one police officer or other member of the public will be saved due to the issuance of an EAS Blue Alert that uses the BLU event code. Injury prevention is another benefit of the BLU event code. The value of injury prevention provides an independent, quantitative metric to express the minimum benefit our rules could produce. Like fatalities, it is difficult to predict the specific number of injuries that the BLU event code will prevent. However, according to the Department of Transportation, nonfatal injuries are far more common than fatalities, and vary widely in severity, as well as probability. Accordingly, the Commission reasons that the public benefit of the rule adopted in this Order is heightened by its role in preventing injuries.

27. The establishment of a dedicated Blue Alert code will also provide the benefit of generating assistance from the public and cost savings for emergency responders. According to NYC, threats and/or violent crimes, including those covered by Blue Alerts, have an economic impact on jurisdictions that should be counted among the benefits of Blue Alerts. Blue Alerts can provide an immediate warning to the public in an area where an extremely dangerous suspect is thought to be. As the Commission noted in the WEA Report and Order and FNPRM, when people can avert situations where they need emergency assistance and therefore do not need to call 911, Public Safety Answering Points are able to avert the cost of resource deployment. NYC also argues that Blue Alerts will help major visitor destinations like NYC provide information to and elicit support from non-residents. The Commission agrees with the COPS Office, that the public has repeatedly played a critical role in assisting law enforcement in maintaining safety; but to assist and avoid danger, the public must be informed. According to the COPS Office, there are clear and significant differences between states' handling of Blue Alerts, which could limit or complicate coordination efforts when a suspect flees, or is thought to have fled, to another jurisdiction. The Commission agrees with the COPS Office that widespread, uniform adoption of the BLU event code, would arm law enforcement officers with the information necessary to rapidly apprehend those who remain a threat to law enforcement and our communities. The Commission concludes that the minor burdens associated with adopting the BLU code will be more than offset by its benefits.

28. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

29. Pursuant to the Regulatory Flexibility Act of 1980, as amended (RFA), see 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was included in the NPRM in PS Docket No. 15-94. The Commission sought written comment on the proposals in this docket, including comment on the IRFA. This Final Regulatory Flexibility Analysis conforms to the RFA.

30. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Therefore, it also does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

31. The Commission will send a copy of this Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

32. Accordingly, it is ordered that pursuant to sections 1, 4(i), 4(o), 303(r), 624(g), and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(o), 303(r), 544(g), 606, as well as by sections 602(a),(b),(c), (f), 603, 604 and 606 of the Warning, Alert and Response Network Act, 47 U.S.C. 1202(a),(b),(c), (f), 1203, 1204 and 1206, that this Order is adopted.

33. It is further ordered that the Commission's rules are hereby amended as set forth in Appendix A of the full Order.

34. It is further ordered that the rules and requirements adopted herein, including at Appendix A of the full Order, to enable the delivery of Blue Alerts over EAS will be implemented January 18, 2019.

35. It is further ordered that the rules and requirements adopted herein, including at Appendix A of the full Order, to enable the delivery of Blue Alerts over WEA will be implemented July 18, 2019.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

This document announces that, on January 5, 2018, OMB approved, for a period of three years, the information collection requirements relating to certain of the discontinuance rules contained in the Commission's Technology Transitions Declaratory Ruling, Second Report and Order, and Order on Reconsideration, FCC 16-90, published at 81 FR 62632, September 12, 2016, as specified above.

The OMB Control Number is 3060-0149. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room A-C620, 445 12th Street SW, Washington, DC 20554. Please include the OMB Control Number, 3060-0149, in your correspondence. The Commission will also accept your comments via email at [email protected].

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on January 5, 2018, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 63. 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 3060-0149.

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: 3060-0149.

OMB Approval Date: January 5, 2018.

OMB Expiration Date: January 31, 2021.

Title: Part 63, Application and Supplemental Information Requirements; Technology Transitions et al., GN Docket No. 13-5 et al.

Form Number: N/A.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 60 respondents; 60 responses.

Estimated Time per Response: 6 hours.

Frequency of Response: One-time reporting requirement and third-party disclosure requirements.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this collection of information is contained in 47 U.S.C. 214 and 402 of the Communications Act of 1934, as amended.

Total Annual Burden: 360 hours.

Total Annual Cost: No cost(s).

Nature and Extent of Confidentiality: The Commission is not requesting that the respondents submit confidential information to the FCC. Respondents may, however, request confidential treatment for information they believe to be confidential under 47 CFR 0.459 of the Commission's rules.

Privacy Act: No impact(s).

Needs and Uses: The Commission is seeking Office of Management and Budget (OMB) approval for a revision to a currently approved collection. Section 214 of the Communications Act of 1934, as amended, requires that a carrier first obtain FCC authorization either to (1) construct, operate, or engage in transmission over a line of communications, or (2) discontinue, reduce or impair service over a line of communications. Part 63 of title 47 of the Code of Federal Regulations (CFR) implements Section 214. Part 63 also implements provisions of the Cable Communications Policy Act of 1984 pertaining to video which was approved under this OMB Control Number 3060-0149. In 2009, the Commission modified Part 63 to extend to providers of interconnected Voice of internet Protocol (VoIP) service the discontinuance obligations that apply to domestic non-dominant telecommunications carriers under Section 214 of the Communications Act of 1934, as amended. In 2014, the Commission adopted improved administrative filing procedures for domestic transfers of control, domestic discontinuances and notices of network changes, and among other adjustments, modified Part 63 to require electronic filing for applications for authorization to discontinue, reduce, or impair service under section 214(a) of the Act. In July 2016, the Commission revised certain section 214(a) discontinuance procedures. To reduce burdens on carriers, the Commission revised its rules to: (1) Allow carriers to provide notice via email or other alternative methods to offer additional options to customers, and (2) provide for streamlined treatment of applications to discontinue services for which the carrier has had no existing customers or reasonable requests for service during the previous 180 days. It also addressed a gap in the Commission's rules by making a competitive LEC's application for discontinuance deemed granted on the effective date of any copper retirement that made the discontinuance unavoidable. The Commission further concluded that applicants must provide notice of discontinuance applications to federally-recognized Tribal Nations. The Commission estimates that there will be only minimal impact on the annual burden hours associated with discontinuance applications as a result of these revisions. Specifically, the Commission estimates that carriers will need no more than one additional hour per application for purposes of determining which, if any, Tribal Nations are located in the service areas to be affected by the planned discontinuance and providing such notice. The estimated number of respondents, responses, and burden hours associated with this collection differ from those set forth in the 60-day notice published on October 28, 2016 (81 FR 75054), which covered additional section 214(a) discontinuance rules adopted in 2016 that will now be addressed separately. As a result, the burden hours herein are substantially reduced from those contained in the 60-day notice.

NMFS published an inseason adjustment of the 2018 TAC amounts for the BSAI pollock, Atka mackerel, and Pacific cod fisheries (82 FR 60329, December 20, 2017). A table providing information about the 2018 allocations of pollock TACs and community development quota (CDQ) directed fishing allowances (DFA) contained an incorrect amount in the column titled “2018 allocations” and the second row in the Bering Sea subarea titled “CDQ DFA.” This value was specified as 164,434 metric tons (mt), instead of the correct value of 136,434 mt.

NMFS anticipates that this correction will not affect the fishing operations of the CDQ vessels that are subject to these DFAs. This is because of the seasonal allocations for the Bering Sea subarea CDQ DFAs are correctly specified.

In FR Doc. 2017-27428, published on December 20, 2017 (82 FR 60329), the following correction is made to Table 5:

On page 60330, in Table 5, column 2 is corrected to incorporate the correct amount for the Bering Sea subarea CDQ pollock DFA.

Table 5 is corrected and reprinted in its entirety to read as follows:

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This correcting amendment makes changes to correct the amount of Bering Sea subarea CDQ pollock DFA in Table 5, as described above, and does not change operating practices in the fisheries. If this correction is delayed to allow for notice and comment, it would result in confusion for participants in the fisheries. Therefore, in order to avoid any negative consequences that could result from this error, the AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This correcting amendment makes only a minor change to correct the amount of Bering Sea subarea CDQ pollock DFA in Table 5, and does not change operating practices in the fisheries. This correction would also avoid any confusion for participants in the fisheries. For these reasons, the AA finds good cause to waive the 30-day delay in the effective date of this action.