Federal Register Vol. 83, No.208,

Prior documents in this proceeding: Notice of Hearing issued on April 14, 2016, and published in the April 22, 2016, issue of the Federal Register (81 FR 23650) and a Recommended Decision issued on May 3, 2017, and published in the May 31, 2017, issue of the Federal Register (82 FR 24882); and a Secretary's Decision and Referendum Order issued September 19, 2017, and published in the September 29, 2017, issue of the Federal Register (82 FR 45517).

This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See the Office of Management and Budget's (OMB) Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

Notice of this rulemaking action was provided to tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations.

This action, pursuant to 5 U.S.C. 556 and 557, finalizes amendments to regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 989, as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California. Part 989 (referred to as the Order) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

This rule is formulated on the record of a public hearing held on May 3 and 4, 2016, in Clovis, California. The hearing was held pursuant to the provisions of the Act, and the applicable rules of practice and procedure governing the formulation and amendment of marketing agreements and orders (7 CFR part 900). Notice of this hearing was published in the Federal Register on April 22, 2016 (81 FR 23650). The notice of hearing contained five proposals submitted by the RAC and three proposals by AMS.

Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on May 3, 2017, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by June 30, 2017. One exception was filed. The exception filed opposed the proposed amendment to establish term limits.

A Secretary's Decision and Referendum Order was issued on September 29, 2017, directing that a referendum be conducted during the period of December 4 through 17, 2017, among eligible California raisin growers to determine whether they favored the proposed amendments to the Order. To become effective, the amendments had to be approved by at least two-thirds of those growers voting, or by voters representing at least two-thirds of the volume of raisins represented by voters voting in the referendum. The approved amendments were favored by over ninety percent of the growers voting in the referendum, representing over ninety percent of the total volume of raisins produced by those voting. The failed amendment was opposed by ninety-three percent of those voting and ninety-five percent of the represented volume.

The amendments favored by voters and included in this final order will: Authorize production research; establish new nomination procedures for independent grower member and alternate member seats; add authority to regulate quality; add authority to establish different regulations for different market destinations; add a continuance referenda requirement; and remove volume regulation and reserve pool authority from the Order.

USDA also made changes as were necessary to conform the Order provisions to the effectuated amendments. Conforming changes and corrections proposed by USDA include: Revising all references of “offgrade” to “off-grade”; revising all references of “nonnormal” to “non-normal”; and, revising all references of “committee” to “Committee.” These corrections will result in consistent spelling of these terms throughout the Order. Also in this final rule, USDA will revise the amendment of § 989.58(d) from “interplant” and “interhandler” to “inter-plant” and “inter-handler” as it appears in amended § 989.59(e).

In addition, the words “Processed Products Standardization and Inspection Branch” in §§ 989.58(d) and 989.59(d) will be changed to “Specialty Crops Inspection Division.” Similarly, “Processed Products Branch, Fruit and Vegetable Division” in § 989.102 will be changed to “Specialty Crops Inspection Division.” These corrections will reflect the official name change of the AMS's inspection service office for fruit, vegetables and specialty crops.

Lastly, an additional correction will change the amendatory language in §§ 989.55, 989.56, 989.65, 989.66, 989.67, 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257 and 989.401, from “remove” to “remove and reserve.” This change will prevent the unintentional renumbering of remaining sections of the Order.

The amended marketing agreement was subsequently mailed to all raisin handlers in the production area for their approval. The marketing agreement was approved by handlers representing more than 50 percent of the volume of raisins handled by all handlers during the August 1, 2016, through July 31, 2017, representative period. Consequently, a companion handler agreement will also be established.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

According to the hearing transcript, there are approximately 3,000 raisin producers in California. According to National Agricultural Statistics Service data presented at the hearing, the total value of production of raisins in the 2014/15 crop year is $598,052,000. Taking the total value of production for raisins and dividing it by the total number of raisin producers provides an average return per producer of $199,950.67. A small producer as defined by the Small Business Administration (SBA) (13 CFR 121.201) is one that grosses less than $750,000 annually. Therefore, a majority of raisin producers are considered small entities under SBA's standards.

According to the industry, there were 23 raisin handlers for the 2015/16 crop year. While individual handling operation information is proprietary, both testimonies offered by handler witnesses and an assessment of total value of dried production leads USDA to conclude that 13 handlers would be considered small entities under SBA's standards.

According to the record, two of the 23 handlers handled roughly 60 percent of total production during the 2015/16 crop year. A calculation using the 2014 total value of production of $598,052,000 puts the value handled by the cooperatives at $358,831,200 ($598,052,000 × 60 percent) and the value handled by all other handlers at $239,220,800. With 21 non-cooperative handlers remaining, $239,220,800 divided by that number results in an average handler receipt of $11,391,467. Assuming a normal bell-curve distribution, coupled with the number of handlers self-identifying at the hearing as small business entities, USDA accepts the Committee's assertion that 13 handlers fall under the SBA definition of small agricultural service firm. A small agricultural service firm as defined by the SBA is one that grosses less than $7,500,000 annually. Thus, slightly more than half of the industry's handlers are considered small entities under SBA's standards.

The production area regulated under the Order covers the state of California. Acreage devoted to raisin production in the regulated area has declined in recent years. According to data presented at the hearing, bearing acreage for raisins reached a high of 280,000 acres during the 2000/01 crop year. Since then, bearing acreage for raisins has decreased 32 percent to 190,000 acres in 2014/15. As a result, the total production of raisins reached a high during the 2000/01 crop year of 484,500 tons (dried basis). Since the 2000/01 crop year, total production for raisins has decreased 32 percent to 328,600 tons in 2014/15.

During the hearing held May 3 and 4, 2016, interested persons were invited to present evidence on the probable regulatory and information collection impact of the proposed amendments to the Order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have any burdensome effects or a significant economic impact on a substantial number of small agricultural producers or firms.

This action amends § 989.53 to authorize production research.

Currently, the California Raisin Marketing Board (CRMB) is the funding source for production research for the California raisin industry. Three years ago, payments of assessments to the CRMB were suspended due to the results of litigation. Without funding, the CRMB has been unable to conduct any new production research projects. The amendment to § 989.53 will authorize the RAC to conduct production research without having to rely on the CRMB for funding.

Witnesses stated that future research could potentially impact producers in many ways, such as reducing pesticide usage or the development of new varieties that are less labor intensive. Production research will provide the raisin industry the ability to meet the needs of the ever changing domestic and international markets. According to a witness's testimony, the benefits of the proposed amendment will outweigh any costs and will not have a significant impact on a substantial number of small entities.

This action amends §§ 989.29 and 989.129 to authorize separate nominations for independent producer members and independent producer alternate member seats.

Currently, the RAC has difficulty filling Committee seats designated for independent producer members and independent producer alternate members. Independent producer alternate member seats have gone unfilled for several consecutive years.

According to witnesses' testimony, this amendment will increase the participation of independent producers willing to participate on the RAC. Allowing for separate nominations for members and alternates will encourage participation by those who wish to serve in one capacity and not the other. Full participation would give the independent producers full representation on the Board they represented and a voice in RAC decisions.

It is determined that the benefits of increased RAC participation by independent producers will outweigh any costs associated with the implementation of this amendment.

This action will amend §§ 989.58, 989.59 and 989.61 to add authority to regulate quality under the Order. A corresponding change will also revise the heading prior to § 989.58 to include quality.

Currently, §§ 989.58 and 989.59 state that the RAC has the authority to recommend grade and condition standards under the Order. The attribute “quality” is not specifically mentioned. The amendment will add language to include “quality” as an attribute that can be regulated under the Order.

According to a witness at the hearing, the amendment will give the RAC flexibility to ensure consumer safety by setting quality standards for residue levels for herbicides, pesticides or fungicides. The quality standards will be equally applied to all handlers of raisins within the U.S.; some handlers are already testing for certain types of fungicides so the increased costs will be minimal.

It is determined that the additional costs incurred to regulate quality will be greatly outweighed by the increased flexibility for the industry, increased consumer safety, and other benefits gained from implementing this amendment. The costs of implementing it will not have a significant impact on a substantial number of small entities.

This action will amend § 989.59 to add authority to establish different regulations for different markets.

The Order does not currently allow for different quality or grade standards to be applied to different foreign markets. The language in the Order only has two classifications for grade and condition standards, Grade A or Grade B. The current grade and condition standards are consistent across all markets.

This amendment will give the RAC the authority to develop requirements for raisins intended for export to different foreign markets. Industry will have the flexibility to tailor product attributes to meet the foreign consumer profile and the customer demands for each individual market.

It is determined that any additional costs incurred for this amendment will be outweighed by the increased flexibility for the industry to respond to a changing global marketplace. The costs of implementing this amendment will not have a significant impact on a substantial number of small entities.

This action will amend § 989.91 to require continuance referenda.

The amendment will require the USDA to conduct a continuance referendum between year five and year six after implementation for the first referendum, and every six years thereafter. A witness testified that a continuance referendum is the best tool for assuring that the Order remains responsive to the needs of the industry. While a continuance referendum will not directly improve producer returns, it will indirectly ensure that the industry believes that the Order is operating in the producer's best interest.

For these reasons, it is determined that the benefits of conducting a continuance referendum will outweigh the potential costs of implementing this amendment. The costs of implementing this amendment will be minimal and will not have a significant impact on a substantial number of small entities.

This action will amend the Order to remove volume regulation and reserve pool authority. This will include: deleting and reserving §§ 989.55 and 989.56, §§ 989.65 through 989.67, §§ 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257, and 989.401; revising §§ 989.11, 989.53, 989.54, 989.58, 989.59, 989.60, 989.73, 989.79, 989.80, 989.84, 989.158, 989.173, and 989.210; and re-designating § 989.70 as § 989.96. Corresponding changes will also remove the following headings: “Volume Regulation” prior to § 989.65; “Volume Regulation” prior to § 989.166; and, “Subpart-Schedule of Payments” prior to § 989.401.

The amendment will remove all authority for the RAC to recommend volume restrictions and a reserve pool. On June 22, 2015, the United States Supreme Court, in Horne v. USDA, ruled that the application of the Order's reserve pool authority to the Horne's was a taking under the Fifth Amendment to the U.S. Constitution. In a July 16, 2015, letter to the RAC, USDA stated, “In light of the Horne decision, the U.S. Department of Agriculture has decided not to authorize the reserve program of the Federal marketing order for California raisins for the foreseeable future, effective immediately.”

One witness at the hearing explained that bearing acres have declined the past ten years, which supports the theory that the California raisin industry is adjusting to a decreasing or flat demand for the product. The witness stated that, in the future, supply will likely remain in better balance with demand and, therefore, the reserve pool and volume regulation are no longer as relevant as they were in higher production times. To further the point, the witness stated that the Order's reserve pool authority has not been utilized since 2010.

The amendment will be a relaxation of regulatory requirements. For this reason, it is determined that no significant impact on small business entities is anticipated from this change.

The costs attributed to these amendments are minimal; therefore, there will not be a significant impact on a substantial number of small entities.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. These amendments are intended to improve the operation and administration of the Order and to assist in the marketing of California raisins.

RAC meetings regarding these amendments, as well as the hearing date and location, were widely publicized throughout the California raisin industry, and all interested persons were invited to attend the meetings and the hearing to participate in RAC deliberations on all issues. All RAC meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues. Finally, interested persons were invited to submit information on the regulatory and information collection impacts of this action on small businesses.

Current information collection requirements for Part 989 are approved by OMB, under OMB Number 0581-0189—“Generic OMB Fruit Crops.” No changes are anticipated in these requirements as a result of this proceeding. Should any such changes become necessary, they will be submitted to OMB for approval.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

AMS is committed to complying with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

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

The amendments to the Order stated herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. The amendments do not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the Marketing Order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

(a) Findings and Determinations Upon the Basis of the Hearing Record

Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon further amendment of Marketing Order No. 989, regulating the handling of raisins produced from grapes grown in California.

Upon the basis of the record, it is found that:

(1) The Order, as amended, and as hereby further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

(2) The Order, as amended, and as hereby further amended, regulates the handling of raisins produced from grapes grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the Order upon which a hearing has been held;

(3) The Order, as amended, and as hereby further amended, is limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

(4) The Order, as amended, and as hereby further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of raisins produced from grapes grown in California; and

(5) All handling of raisins produced from grapes grown in the production area as defined in the Order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

(b) Determinations. It is hereby determined that:

(1) Handlers (excluding cooperative associations of growers who are not engaged in processing, distributing, or shipping raisins covered by the Order as hereby amended) who, during the period August 1, 2016, through July 31, 2017, handled 50 percent or more of the volume of such raisins covered by said Order, as hereby amended, have signed an amended marketing agreement;

(2) The issuance of this amendatory Order, further amending the aforesaid Order, was favored or approved by at least two-thirds of the growers who participated in a referendum on the question of approval and who, during the period of August 1, 2016, through July 31, 2017 (which has been deemed to be a representative period), have been engaged within the production area in the production of such raisins, such growers having also produced for market at least two-thirds of the volume of such commodity represented in the referendum; and

(3) The issuance of this amendatory Order advances the interests of producers of raisins in the production area pursuant to the declared policy of the Act.

It is therefore ordered, that on and after the effective date hereof, all handling of raisins produced from grapes grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby amended as follows:

The provisions of the amendments to the Order contained in the Secretary's Decision issued September 19, 2017, and published in the September 29, 2017, issue of the Federal Register (82 FR 45517), with the exception of the proposal to establish term limits, will be and are the terms and provisions of this Order amending the Order and are set forth in full herein.

For the reasons set out in the preamble, 7 CFR part 989 is amended as follows:

Discussion

We learned from GE of a quality escape that one of their suppliers, AECC Aero Science and Technology Co., Ltd., was performing welds on newly-manufactured components to correct errors introduced in their manufacturing process. These welds were not reviewed or approved by either GE or the FAA. GE's review of manufacturing records determined that these parts include combustion cases installed on GE GE90-100 turbofan engines. These combustion cases are life limited. The unapproved repairs reduced the material capability of these cases, which requires their removal prior to reaching their published Airworthiness Limitation Section life limit. This condition, if not addressed, could result in failure of the combustion case, engine fire, and damage to the airplane. We are issuing this AD to address the unsafe condition on these products.

We reviewed GE GE90-100 Service Bulletin (SB) SB 72-0784 R00, dated May 4, 2018; GE SB GE90-100 S/B 72-0788, Revision 4, dated July 30, 2018; and GE SB GE90-100 SB 72-0793 R00, dated August 10, 2018. The SBs describe procedures for removing the affected combustion cases from the engine. GE SB GE90-100 SB 72-0784 R00 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. GE SB GE90-100 S/B 72-0788 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. GE SB GE90-100 SB 72-0793 R00 is effective for GE90-100 turbofan engines with the combustion case S/Ns listed in that SB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires removal of the affected combustion cases from service and their replacement with a part eligible for installation.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the compliance time for the required action is shorter than the time necessary for the public to comment and for us to publish the final rule. Certain combustion cases must be removed within 10 cycles after the effective date of this AD to ensure they do not fail. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0898 and Product Identifier 2018-NE-29-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this final rule.

We estimate that this AD affects six engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2017-07-04, Amendment 39-18842 (82 FR 16728, April 6, 2017), (“AD 2017-07-04”). AD 2017-07-04 applied to GE GE90-110B1 and GE90-115B turbofan engines with certain HPC rotor stage 2-5 spools installed. The NPRM published in the Federal Register on June 25, 2018 (83 FR 29474). The NPRM was prompted by the publication of a GE SB that increases the number of affected HPC rotor stage 2-5 spools and includes HPC rotor stage 2-5 spools that were inadvertently omitted from the applicability of AD 2017-07-04. The NPRM proposed to require removing certain HPC rotor stage 2-5 spools from service before reaching the new reduced life limit and replacing them with parts eligible for installation. We are issuing this AD to address the unsafe condition on these products.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

All Nippon Airways (ANA), Azur Aviation, and Lufthansa Technik AG (Lufthansa) questioned why HPC rotor stage 2-5 spools listed in paragraph (c) of this AD, identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, are not required to be replaced in paragraph (g) of this AD. Lufthansa reasoned that GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, requires replacement of affected spools, but this AD does not.

We disagree. Based on information provided by GE, and to the best of our knowledge, all HPC rotor stage 2-5 spools listed in paragraph 1.A. of GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014, have been removed from service. Because these HPC rotor stage 2-5 spools have been removed from service, we did not require their removal under paragraph (g) of this AD. This AD, however, includes an installation prohibition under paragraph (h) to prevent installation of these HPC rotor stage 2-5 spools. We did not change this AD.

FedEx Express (FedEx) requested that certain HPC rotor stage 2-5 spools be considered for a potential GE rework option to extend their life beyond allowances of this AD, before removal from service. FedEx reasoned that GE intends to provide a rework option that will extend the life of HPC rotor stage 2-5 spools that are removed before reaching 4,500 cycles. This rework option could extend the on-wing times for some engines.

We disagree. While GE intends to provide a rework option to extend the life of certain HPC rotor stage 2-5 spools, we do not require compliance based on information that has not yet been published. We based the compliance on the most recently published service information. This AD and the associated GE service information do not allow credit for rework or life extensions. We did not change this AD.

ANA requested clarification regarding whether the proposed AD intends to require removing the following three (3) HPC rotor stage 2-5 spool configurations from service at a time determined by this AD:

(1) HPC rotor stage 2-5 spools that use the original seal teeth coating. (Known as Population-1);

(2) HPC rotor stage 2-5 spools that use the modified seal teeth coating. (Known as Population-2); and

(3) HPC rotor stage 2-5 spools that use the modified seal teeth coating without inner-teeth coating. (Known as Population-3).

We interpret ANA's comment as request to verify if this AD requires removal of the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014; GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016; and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018. ANA commented that requirements and actions in this AD are difficult to understand.

The purpose of this AD is to remove the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016, and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018, from service, and to prohibit the installation of those HPC rotor stage 2-5 spools and the HPC rotor stage 2-5 spools identified in GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014. Paragraphs (c) and (g) of this AD list the affected part numbers and serial numbers. We did not change this AD.

The Air Line Pilots Association, Boeing Company, and American Airlines expressed support for the NPRM as written.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

We reviewed GE SB GE90-100 SB 72-0499 R01, dated February 5, 2014; GE SB GE90-100 SB 72-0659 R01, dated February 18, 2016; and GE SB GE90-100 S/B 72-0714, Revision 01, dated February 16, 2018.

GE SB GE90-100 SB 72-0499 R01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use the original seal tooth coating process. GE SB GE90-100 SB 72-0659 R01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use a modified seal tooth coating process. GE SB GE90-100 S/B 72-0714, Revision 01 describes procedures for identification and removal from service of HPC rotor stage 2-5 spools that use the modified seal tooth coating process, without coating between the seal teeth.

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

We estimate that this AD affects 85 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

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

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

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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 modifies Class D airspace designated as an extension at Tulsa Lloyd Jones Jr. Airport, Tulsa, OK, to support instrument flight rules operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 14785; April 6, 2018) for Docket No. FAA-2018-0094 to amend the Class D airspace Designated as an extension at Tulsa Lloyd Jones Jr. Airport, Tulsa, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received from the Aircraft Owners and Pilots Association (AOPA). In their comment, AOPA stated that the NPRM did not comply with FAA guidance in FAA Order 7400.2L, Procedures for Handling Airspace Matters, because a graphic was not included in the docket. Additionally, AOPA encouraged the FAA to follow their guidance in the Order by making the action effective date coincidental to the sectional chart publication date.

The FAA has determined AOPA's comments raised no substantive issues with respect to the proposed changes to the airspace addressed in the NPRM. To the extent the FAA failed to follow its policy guidance reference publishing graphics in the docket and establishing the Class D airspace effective date to match the sectional chart date, we note the following.

With respect to AOPA's comment addressing graphics, FAA Order 7400.2L, paragraph 2-3-3.c. requires the official docket to include available graphics. For this airspace action, no graphics were deemed necessary or produced in the review or development of the proposed airspace amendments noted in the NPRM; therefore, no graphics were available to include in the docket.

Specific to AOPA's comment regarding the FAA already creating a graphical depiction of new or modified airspace overlaid on a Sectional Chart for quality assurance purposes, this is not correct nor required in all cases. During the airspace reviews, airspace graphics may be created, if deemed necessary, to determine if there are any terrain issues, or if cases are considered complex. However, in many cases when developing an airspace amendment proposal, a graphic is not required. It was unclear if the graphic AOPA argued was already created with a sectional chart background was actually the airspace graphic created by the Aeronautical Informational Services office in preparation of publishing the sectional charts. However, that graphic is normally created after the rulemaking determination is published.

With respect to AOPA's comment addressing effective dates, FAA Order 7400.2L, paragraph 2-3-7.a.4. states that, to the extent practicable, Class D airspace area and restricted area rules should become effective on a sectional chart date and that consideration should be given to selecting a sectional chart date that matches a 56-day en route chart cycle date. The FAA does consider publishing Class D airspace amendment effective dates to coincide with the publication of sectional charts, to the extent practicable; however, this consideration is accomplished after the NPRM comment period ends in the final rule. Substantive comments received to NPRMs, flight safety concerns, management of IFR operations at affected airports, and immediacy of required proposed airspace amendments are some of the factors that must be taken into consideration when selecting the appropriate effective date. After considering all factors, the FAA may determine that selecting an effective date that conforms to a 56-day en route chart cycle date that is not coincidental to sectional chart dates is better for the National Airspace System and its users than awaiting the next sectional chart date.

Class D airspace designations are published in paragraphs 5000 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C 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 D airspace extending upward from the surface to and including 3,100 feet MSL, within a 4-mile radius of Richard Lloyd Jones Jr. Airport, and within 1 mile each side of the 190° radial from the airport RWY 01L-LOC extending from the 4-mile radius to 4.1 miles south of the airport (reduced from 1.3 miles each side of the 350° radial of the Glenpool VOR extending from the 4-mile radius to 4.7 miles south of the airport). This action is necessary due to the decommissioning of the Glenpool VOR as part of the VOR MON Program and cancellation of the associated instrument approach.

The geographic coordinates of the airport are also updated to coincide with the FAA's aeronautical database. Additionally, this action makes an editorial change to the Class D airspace legal description replacing “Airport/Facility Directory” with “Chart Supplement.”

Also, an editorial change will be made removing the airport name from the airspace designation, and removing the word “Tulsa” from the airport name, to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

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:

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 at Cambridge-Dorchester Regional Airport, Cambridge, MD, to support standard instrument approach procedures for IFR operations in the area.

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (83 FR 38098, August 3, 2018) for Docket No. FAA-2018-0468 to amend Class E airspace extending upward from 700 feet or more above the surface at Cambridge-Dorchester Regional Airport, Cambridge, MD.

Subsequent to publication, the FAA found that the airspace designation header was incorrect, and is corrected in this rule.

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 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C 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) amends part 71 by amending Class E airspace extending upward from 700 feet or more above the surface at Cambridge-Dorchester Regional Airport to within a 6.6-mile radius (increased from a 6.4-mile radius) of the airport due to the decommissioning of the Cambridge NDB, and cancellation of the NDB approach. The airspace redesign enhances the safety and management of IFR operations at the airport. The geographic coordinates of the airport also are adjusted to coincide with the FAA's aeronautical database, and the airport name is updated to Cambridge-Dorchester Regional Airport, (formerly Cambridge-Dorchester Airport).

Finally, the region identifier in the designation header is corrected to “AEA” from “ANE”.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

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 establishes Class E airspace extending upward from 700 feet above the surface at Copiah County Airport, Crystal Springs, MS, to support standard instrument approach procedures for IFR operations at this airport.

The FAA published a notice of proposed rulemaking (NPRM in the Federal Register (83 FR 36482, July 30, 2018) for Docket No. FAA-2016-9442 to establish Class E surface area airspace at Copiah County Airport, Crystal Springs, MS.

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 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document proposes to amend FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Copiah County Airport, Crystal Springs, MS, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for IFR operations at the 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. Therefore, this regulation: (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 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

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, at Augusta, GA, and establishes Class E airspace at Waynesboro, GA, to support airspace reconfiguration due to the decommissioning of the Millen non-directional radio beacon (NDB) and cancellation of the NDB approach at Millen Airport.

The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 39384, August 9, 2018) for Docket No. FAA-2018-0369 to amend Class E airspace area extending upward from 700 feet or more above the surface, and establish Class E airspace area extending upward from 700 feet or more above the surface at Burke County Airport and Millen Airport, Waynesboro, GA as the Millen NDB has been decommissioned and the NDB approach cancelled.

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 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11C 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) amends part 71 by amending Class E airspace extending upward from 700 feet above the surface in Augusta, GA, by recognizing the name change of Augusta Regional Airport at Bush Field (formerly Augusta Regional at Bush Field Airport); removing Burke County Airport and Millen Airport from the airspace designation and establishing these two airports under Waynesboro, GA, designation due to the cancellation of the Millen NDB and cancellation of the associated approach; and updating the geographic coordinates of Daniel Field, Augusta, GA, to be in concert with the FAA's aeronautical database.

Class E airspace extending upward from 700 feet above the surface is established at Burke County Airport, Waynesboro, GA, within a 6.7-mile (increased from a 6.6-mile) radius of the airport.

Class E airspace extending upward from 700 feet above the surface is established at Millen airport within a 7.4-mile (increased from a 7.3-mile) radius of the airport. The geographic coordinates are adjusted to be in concert with the FAA's aeronautical database.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

I. Executive Summary

This action reissues, with modifications to address changed conditions in Iraq, Special Federal Aviation Regulation (SFAR) No. 77, § 91.1605, which prohibits certain flight operations in the Baghdad FIR (ORBB) by all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. The reissued rule prohibits operations in the Baghdad FIR (ORBB) below Flight Level (FL) 260, except operations necessary to climb out of, or descend into, the Kuwait FIR (OKAC), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq.

Conditions in Iraq have improved since action was last taken on SFAR No. 77, § 91.1605 by the FAA in May 2015, which expired on May 11, 2017.1 The coalition of Iraqi security forces, allied nations, and supporting militia elements has successfully reduced the area under Islamic State of Iraq and Ash-Sham (ISIS) control. In addition, the operational anti-aircraft-capable weapons possessed by ISIS or other anti-U.S. extremist/militant elements are altitude-limited and would not pose a risk to U.S. civil aviation overflights at or above FL 260, provided that the flights remain clear of areas where fighting is likely to occur or re-emerge. The appropriate authorities of Iraq have taken steps to prohibit civil aviation operations at or above FL 260 in such areas. Therefore, on December 9, 2017, the FAA issued KICZ NOTAM A0025/17, amending its prohibition on U.S. civil aviation operations in the Baghdad FIR (ORBB) to allow overflights at or above FL 260.

There continues to be an unacceptable level of risk to U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260, as described in this rule, resulting from the potential for fighting in certain areas of Iraq and ongoing concerns about the extremist/militant threat to U.S. civil aviation throughout Iraq. With limited exceptions described in this final rule, U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260 remain prohibited consistent with KICZ NOTAM A0025/17. Consequently, the FAA is reissuing the modified SFAR to remain in effect until October 26, 2018. The FAA finds this action necessary due to continued hazards to U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260.

The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA Administrator's authority to issue rules on aviation safety is found in title 49, U.S. Code, Subtitle I, sections 106(f) and (g). Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.

This rulemaking is promulgated under the authority described in title 49, U.S. Code, subtitle VII, Part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

This regulation is within the scope of FAA's authority, because it prohibits the persons described in paragraph (a) of SFAR No. 77, § 91.1605, from conducting flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260, with limited exceptions, due to the continued hazards to the safety of U.S. civil flight operations, as described in the preamble to this final rule.

The FAA also finds that this action is fully consistent with the obligations under 49 U.S.C. 40105(b)(1)(A) to ensure that the FAA exercises its duties consistently with the obligations of the United States under international agreements.

Section 553(b)(3)(B) of title 5 of the United States Code (5 U.S.C.) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) also authorizes agencies to forgo the delay in the effective date of the final rule for good cause found and published with the rule. In this instance, the FAA finds good cause to forgo notice and comment because notice and comment would be impracticable and contrary to the public interest. The FAA has identified an immediate need to address the continued hazardous situation for U.S. civil aviation that exists in the Baghdad FIR (ORBB) at altitudes below FL 260 due to the potential for fighting in certain areas of Iraq and ongoing concerns about the extremist/militant threat to U.S. civil aviation throughout Iraq. These hazards are further described in the preamble to this rule. To the extent that the rule is based upon classified information, such information is not permitted to be shared with the general public. Also, threats to U.S. civil aviation and intelligence regarding these threats are fluid. As a result, the agency's original proposal could become unsuitable for minimizing the hazards to U.S. civil aviation in the affected airspace during or after the notice and comment process.

Additionally, it is contrary to the public interest to delay the effective date of this SFAR. This action reissues SFAR No. 77, § 91.1605, with appropriate modifications, to codify the provisions of the FAA's December 9, 2017, NOTAM, which will reduce the potential for confusion over whether certain overflights of Iraq by U.S. operators and airmen are permitted.

For these reasons, the FAA finds good cause to forgo notice and comment and any delay in the effective date for this rule.

On October 9, 1996, the FAA issued SFAR No. 77 to prohibit flight operations over or within the territory of Iraq by any U.S. air carrier or commercial operator; by any person exercising the privileges of an airman certificate issued by the FAA, except persons operating U.S.-registered aircraft for a foreign air carrier; or by any person operating an aircraft registered in the U.S., unless the operator of such aircraft was a foreign air carrier. The FAA extended and amended SFAR No. 77 several times to respond to evolving circumstances and their corresponding hazards to U.S. civil operations.2 Most recently, on May 11, 2015, the FAA published a final rule amending SFAR No. 77, § 91.1605, to prohibit U.S. civil aviation operations in the Baghdad FIR (ORBB) at all altitudes due to the hazardous situation created by armed conflict, which formalized a flight prohibition NOTAM issued under the Administrator's emergency authority. 80 FR 26822. SFAR No. 77, § 91.1605, expired on May 11, 2017. On May 10, 2017, the FAA issued KICZ NOTAM A0010/17 under the Administrator's safety and emergency authority (49 U.S.C. 40113(a) and 46105(c), respectively) to continue the prohibition of certain flight operations in the Baghdad FIR (ORBB) without interruption due to the continuing hazards to U.S. civil aviation operations.

The FAA continued to monitor developments in Iraq relevant to the safety of U.S. civil aviation after issuing its May 10, 2017, NOTAM. The FAA assessed that conditions in Iraq had improved, as the coalition of Iraqi security forces, allied nations, and supporting militia elements had successfully reduced the area under ISIS control. In addition, the FAA assessed that the operational anti-aircraft-capable weapons possessed by ISIS or other anti-U.S. extremist/militant elements did not pose a risk to U.S. civil aviation overflights at or above FL 260, provided that the flights remain clear of areas where fighting is likely to occur or re-emerge. The appropriate authorities of Iraq had taken steps to prohibit civil aviation operations at or above FL 260 in such areas. As a result, the FAA determined that the risk to U.S. civil aviation at or above FL 260 in the Baghdad FIR (ORBB) had been sufficiently reduced to allow U.S. civil aviation overflights at or above FL 260 to resume. The FAA also determined that it was safe to allow limited operations below FL 260 when necessary due to climb performance.

On December 9, 2017, the FAA issued a revised flight prohibition NOTAM prohibiting U.S. civil operations within the Baghdad FIR (ORBB) below FL 260 and thus permitting overflights above FL 260. The NOTAM permitted, by exception, U.S. civil operations departing from countries adjacent to Iraq to operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit a climb to or above FL 260, if the climb performance of the aircraft does not permit it to attain FL 260 prior to entering the Baghdad FIR (ORBB), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq. This change permitted U.S. operators to conduct limited overflights of Iraq, potentially saving travel time and operational costs associated with alternate, less direct routes in a region constrained by multiple SFARs prohibiting operations.

The FAA continues to assess the situation in the Baghdad FIR (ORBB) as being hazardous for U.S. civil aviation at altitudes below FL 260, subject to the limited exceptions described in this final rule. The risk to U.S. civil aviation originates from the potential for fighting in certain areas of northern and western Iraq between the Islamic State of Iraq and ash-Sham (ISIS), other extremist/militant elements, Iraqi security forces and other elements. ISIS and other extremist/militant elements are known to possess a variety of anti-aircraft-capable weapons, including man-portable air defense systems, and have fired on military aircraft during combat operations in Iraq. This presents a continued risk of anti-aircraft fire to civil aircraft, particularly in areas where fighting may occur. There is also a risk of potential hostile activity by ISIS elements or other anti-U.S. militants/extremists elsewhere in Iraq.

The FAA assesses that the risk to U.S. civil aviation operating in the Baghdad FIR (ORBB) over southeastern Iraq has been sufficiently reduced to allow flights to operate at altitudes below FL 260 to the extent necessary to climb-out from or descend into the Kuwait FIR (OKAC). Southeastern Iraq has a lower concentration of ISIS-affiliated and other anti-U.S. extremists/militants, and is at lower risk for fighting to occur, than other parts of Iraq. The terrain in southeastern Iraq is of very low elevation, low enough to provide a reasonable buffer against the remaining risk from anti-aircraft-capable weapons fired from the surface. Additionally, aircraft climbing out of Kuwait are only exposed to any of the remaining risks to operations in the Baghdad FIR (ORBB) at altitudes below FL 260 for the limited time necessary to climb to FL 260, in accordance with Iraqi air traffic control instructions. Similarly, aircraft descending toward Kuwait below FL 260, in accordance with Iraqi air traffic control instructions, are also exposed to such risks for only a limited period of time.

Finally, the routine and expected procedures for hand-offs between Iraqi air traffic control and Kuwaiti air traffic control require operators to cross the Iraq-Kuwait border below FL 260. The FAA has determined that the safety risks of potential traffic conflicts associated with continuing to require U.S. operators and airmen to fly different profiles than those normally flown by civil air traffic in this very busy airspace outweigh the previously described residual risks to U.S. civil aviation operating over southeastern Iraq from potential fighting and anti-U.S. militant/extremist activity.

Upon further examination of the risks to U.S. civil aviation in other areas of Iraq, the FAA has determined that the remaining risks to U.S. civil aviation climbing out of or descending into the other countries that border Iraq have not been sufficiently reduced to permit operations below FL 260. Therefore, while KICZ NOTAM A0025/17 had permitted flights departing from countries adjacent to Iraq to operate at altitudes below FL 260 in the Baghdad FIR (ORBB) to the extent necessary to permit a climb to or above FL 260, under certain circumstances, this rule does not permit such climbouts. The reasons for not extending climbout relief from the other bordering FIRs are discussed in the following paragraphs. Nevertheless, the FAA has determined there are no operational impacts caused by this change. Available information indicates U.S. operators have not relied upon the NOTAM's exception to transition from neighboring FIRs, other than Kuwait, at altitudes below FL 260.

Iraq shares most of its western border with Syria. The FAA currently prohibits U.S. civil aviation operations in the Damascus FIR (OSTT) at all altitudes, including the entire country of Syria, due to the presence of anti-aircraft weapons controlled by non-state actors, threats made by extremist groups, de-confliction concerns, and ongoing fighting. In addition, the Iraqi border region adjacent to Syria is susceptible to extremist/militant cross-border activity that poses a risk to U.S. civil aviation operating below FL 260 within the Baghdad FIR (ORBB). Areas of western and southwestern Iraq near its borders with Jordan and Saudi Arabia have a higher concentration of ISIS-affiliated and other anti-U.S. extremists/militants than southeastern Iraq. The presence of, or potential for, extremist/militant activity within Iraq near its borders with Jordan and Saudi Arabia poses a greater risk to U.S. civil aviation operating below FL 260 inside the Baghdad FIR (ORBB) than that which exists for U.S. civil aviation operating below FL 260 in the Baghdad FIR (ORBB) near Iraq's border with Kuwait.

Iraq shares most of its eastern border with Iran. In the region of Iraq bordering Iran, there is a risk to U.S. civil aviation operating in the Baghdad FIR (ORBB) below FL 260 from potential cross-border extremist/militant activity and inadequate de-confliction of civil and military flights. The Iraq-Iran border region also has areas of high elevation terrain, in comparison to Iraq's border region with Kuwait, which could expose U.S. civil aviation operating below FL 260 over such terrain to greater risk from possible ground-based anti-aircraft weapons in comparison to Iraq's border region with Kuwait.

Iraq borders Turkey to the north. There is a potential for a residual ISIS presence, other extremist/militant activity, and associated counter-terrorism operations in the Iraq-Turkey border region. This activity poses a risk to U.S. civil aviation operating below FL 260 in the Baghdad FIR (ORBB), particularly due to the higher elevation terrain in this region, which could expose U.S. civil aviation, operating below FL 260 over such terrain, to greater risk from ground-based anti-aircraft weapons in comparison to Iraq's border region with Kuwait. The FAA does not believe that there are countervailing aviation safety considerations, such as the air traffic control considerations relative to Kuwait, of sufficient magnitude to outweigh these risks.

Therefore, as a result of the significant continuing risk to the safety of U.S. civil aviation in the Baghdad FIR (ORBB) at altitudes below FL 260, the FAA reissues SFAR No. 77, § 91.1605, with an expiration date of October 26, 2020, to maintain the prohibition on flight operations at altitudes below FL 260, with certain limited exceptions described in the rule. This prohibition applies to all: U.S. air carriers; U.S. commercial operators; persons exercising the privileges of an airman certificate issued by the FAA, except when such persons are operating U.S.-registered aircraft for a foreign air carrier; and operators of U.S.-registered civil aircraft, except where the operator of such aircraft is a foreign air carrier. The reissued SFAR No. 77, § 91.1605, permits those subject to the rule to operate at altitudes below FL 260 to the extent necessary to climb out of, or descend into, the Kuwait FIR (OKAC), subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq. While the FAA's flight prohibition does not apply to foreign air carriers, DOT codeshare authorizations prohibit foreign air carriers from carrying a U.S. codeshare partner's code on a flight segment that operates in airspace for which the FAA has issued a flight prohibition.

The FAA will continue to actively monitor the situation and evaluate the extent to which U.S. civil operators and airmen may be able to operate safely in the Baghdad FIR (ORBB) at altitudes below FL 260 in the future. Further amendments to SFAR No. 77, § 91.1605, may be appropriate if the risk to aviation safety and security changes. The FAA may amend or rescind SFAR No. 77, § 91.1605, as necessary, prior to its expiration date.

If a department, agency, or instrumentality of the U.S. Government determines that it has a critical need to engage any person covered under SFAR No. 77, § 91.1605, including a U.S. air carrier or commercial operator, to conduct a charter to transport civilian or military passengers or cargo, or other operations, in the Baghdad FIR (ORBB) at altitudes below FL 260, that department, agency, or instrumentality may request that the FAA approve persons covered under SFAR No. 77, § 91.1605(a), to conduct such operations.

An approval request must be made directly by the requesting department, agency, or instrumentality of the U.S. Government to the FAA's Associate Administrator for Aviation Safety in a letter signed by an appropriate senior official of the requesting department, agency, or instrumentality. The FAA will not accept or consider requests for approval submitted by anyone other than the requesting department, agency, or instrumentality. In addition, the senior official signing the letter requesting FAA approval on behalf of the requesting department, agency, or instrumentality must be sufficiently positioned within the organization to demonstrate that the senior leadership of the requesting department, agency, or instrumentality supports the request for approval and is committed to taking all necessary steps to minimize operational risks to the proposed flights. The senior official must also be in a position to: (1) Attest to the accuracy of all representations made to the FAA in the request for approval and (2) ensure that any support from the requesting U.S. Government department, agency, or instrumentality described in the request for approval is in fact brought to bear and is maintained over time. Unless justified by exigent circumstances, requests for approval must be submitted to the FAA no less than 30 calendar days before the date on which the requesting department, agency, or instrumentality intends to commence the proposed operations.

The letter must be sent by the requesting department, agency, or instrumentality to the Associate Administrator for Aviation Safety, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. Electronic submissions are acceptable, and the requesting entity may request that the FAA notify it electronically as to whether the approval request is granted. If a requestor wishes to make an electronic submission to the FAA, the requestor should contact the Air Transportation Division, Flight Standards Service, at (202) 267-8166 to obtain the appropriate email address. A single letter may request approval from the FAA for multiple persons covered under SFAR No. 77, § 91.1605, and/or for multiple flight operations. To the extent known, the letter must identify the person(s) covered under the SFAR on whose behalf the U.S. Government department, agency, or instrumentality is seeking FAA approval, and it must describe—

• The proposed operation(s), including the nature of the mission being supported;

• The service to be provided by the person(s) covered by the SFAR;

• To the extent known, the specific locations in the Baghdad FIR (ORBB) at altitudes below FL 260 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Baghdad FIR (ORBB) at altitudes below FL 260 and the airports, airfields and/or landing zones at which the aircraft will take-off and land; and

• The method by which the department, agency, or instrumentality will provide, or how the operator will otherwise obtain, current threat information and an explanation of how the operator will integrate this information into all phases of the proposed operations (i.e., the pre-mission planning and briefing, in-flight, and post-flight phases).

The request for approval must also include a list of operators with whom the U.S. Government department, agency, or instrumentality requesting FAA approval has a current contract(s), grant(s), or cooperative agreement(s) (or with whom its prime contractor has a subcontract(s)) for specific flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260. Additional operators may be identified to the FAA at any time after the FAA approval is issued. However, all additional operators must be identified to, and obtain an Operations Specification (OpSpec) or Letter of Authorization (LOA), as appropriate, from the FAA for operations in the Baghdad FIR (ORBB) at altitudes below FL 260, before such operators commence such operations. The approval conditions discussed below apply to any such additional operators. Updated lists should be sent to the email address to be obtained from the Air Transportation Division by calling (202) 267-8166.

If an approval request includes classified information, requestors may contact Aviation Safety Inspector Michael Filippell for instructions on submitting it to the FAA. His contact information is listed in the For Further Information Contact section of this final rule.

FAA approval of an operation under SFAR No. 77, § 91.1605, does not relieve persons subject to this SFAR of their responsibility to comply with all other applicable FAA rules and regulations. Operators of civil aircraft must also comply with the conditions of their certificate, OpSpecs, and LOAs, as applicable. Operators must further comply with all rules and regulations of other U.S. Government departments and agencies that may apply to the proposed operations, including, but not limited to, the regulations issued by the Transportation Security Administration.

If the FAA approves the request, the FAA's Aviation Safety Organization will send an approval letter to the requesting department, agency, or instrumentality informing it that the FAA's approval is subject to all of the following conditions:

(1) The approval will stipulate those procedures and conditions that limit, to the greatest degree possible, the risk to the operator, while still allowing the operator to achieve its operational objectives.

(2) Before any approval takes effect, the operator must submit to the FAA:

(a) A written release of the U.S. Government from all damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Baghdad FIR (ORBB) at altitudes below FL 260; and

(b) The operator's agreement to indemnify the U.S. Government with respect to any and all third-party damages, claims, and liabilities, including without limitation legal fees and expenses, relating to any event arising out of or related to the approved operations in the Baghdad FIR (ORBB) at altitudes below FL 260.

(3) Other conditions that the FAA may specify, including those that may be imposed in OpSpecs or LOAs, as applicable.

The release and agreement to indemnify do not preclude an operator from raising a claim under an applicable non-premium war risk insurance policy issued by the FAA under chapter 443 of title 49, U.S. Code.

If the FAA approves the proposed operation(s), the FAA will issue an OpSpec or an LOA, as applicable, to the operator(s) identified in the original request authorizing them to conduct the approved operation(s), and will notify the department, agency, or instrumentality that requested the FAA's approval of any additional conditions beyond those contained in the approval letter.

Any operations not conducted under an approval issued by the FAA through the approval process set forth previously must be conducted under an exemption from SFAR No. 77, § 91.1605. A petition for an exemption must comply with 14 CFR part 11 and requires exceptional circumstances beyond those contemplated by the approval process set forth in the previous section. In addition to the information required by 14 CFR 11.81, at a minimum, the requestor must describe in its submission to the FAA—

• The proposed operation(s), including the nature of the operation;

• The service to be provided by the person(s) covered by the SFAR;

• The specific locations in the Baghdad FIR (ORBB) at altitudes below FL 260 where the proposed operation(s) will be conducted, including, but not limited to, the flight path and altitude of the aircraft while it is operating in the Baghdad FIR (ORBB) at altitudes below FL 260 and the airports, airfields and/or landing zones at which the aircraft will take-off and land;

• The method by which the operator will obtain current threat information, and an explanation of how the operator will integrate this information into all phases of its proposed operations (i.e., the pre-mission planning and briefing, in-flight, and post-flight phases); and

• The plans and procedures that the operator will use to minimize the risks, identified in the preamble, to the proposed operations, so that granting the exemption would not adversely affect safety or would provide a level of safety at least equal to that provided by this SFAR. The FAA has found comprehensive, organized plans and procedures of this nature to be helpful in facilitating the agency's safety evaluation of petitions for exemption from flight prohibition SFARs.

Additionally, the release and agreement to indemnify, as referred to previously, are required as a condition of any exemption that may be issued under SFAR No. 77, § 91.1605.

The FAA recognizes that operations that may be affected by SFAR No. 77, § 91.1605, may be planned for the governments of other countries with the support of the U.S. Government. While these operations will not be permitted through the approval process, the FAA will consider exemption requests for such operations on an expedited basis and prior to any private exemption requests.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this final rule has benefits that justify its costs and is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, because it raises novel policy issues contemplated under that Executive Order. As notice and comment under 5 U.S.C. 553 are not required for this final rule, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 regarding impacts on small entities are not required. This rule will not create unnecessary obstacles to the foreign commerce of the United States, and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector, by exceeding the threshold identified previously.

Due to a reduction in the level of risk to U.S. civil aviation operations in the Baghdad FIR (ORBB) at or above FL 260, the FAA's December 9, 2017, NOTAM prohibited U.S. civil aviation operations below FL 260, thus permitting overflights above FL 260. Due to the continued significant hazards to U.S. civil aviation in the Baghdad FIR (ORBB) at altitudes below FL 260 described in the preamble, the December 9, 2017, NOTAM continued the prohibition on U.S. civil aviation operations in the Baghdad FIR (ORBB) at altitudes below FL 260, with limited exceptions. The reissued SFAR No. 77, § 91.1605, permits persons to climb out of, or descend into, the Kuwait FIR (OKAC) at altitudes below FL 260, subject to the approval of, and in accordance with the conditions established by, the appropriate authorities of Iraq.

The FAA believes there are very few U.S. operators who wish to operate in the Baghdad FIR (ORBB) at altitudes below FL 260, where U.S. civil aviation operations will continue to be prohibited. The FAA has received three requests for approval or exemption to conduct flight operations in the Baghdad FIR (ORBB) at altitudes below FL 260 since May 11, 2015. Consequently, the FAA estimates the costs of this rule to be minimal. These minimal costs are exceeded by the benefits of avoided risks of deaths, injuries, and property damage that could result from a U.S. operator's aircraft being shot down (or otherwise damaged) due to the hazards described in the preamble. Consequently, the FAA estimates that the benefits of this rule will exceed the costs.

The Regulatory Flexibility Act, in 5 U.S.C. 603, requires an agency to prepare an initial regulatory flexibility analysis describing impacts on small entities whenever an agency is required by 5 U.S.C. 553, or any other law, to publish a general notice of proposed rulemaking for any proposed rule. Similarly, 5 U.S.C. 604 requires an agency to prepare a final regulatory flexibility analysis when an agency issues a final rule under 5 U.S.C. 553, after being required by that section, or any other law, to publish a general notice of proposed rulemaking. The FAA found good cause to forgo notice and comment and any delay in the effective date for this rule. As notice and comment under 5 U.S.C. 553 are not required in this situation, the regulatory flexibility analyses described in 5 U.S.C. 603 and 604 are not required.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the effect of this final rule. The purpose of this rule is to protect the safety of U.S. civil aviation from hazards to their operations in the Baghdad FIR (ORBB) at altitudes below FL 260, a location outside the U.S. Therefore, the rule is in compliance with the Trade Agreements Act of 1979.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to this regulation.

The FAA has analyzed this action under Executive Order 12114, Environmental Effects Abroad of Major Federal Actions (44 FR 1957, January 4, 1979), and DOT Order 5610.1C, Paragraph 16. Executive Order 12114 requires the FAA to be informed of environmental considerations and take those considerations into account when making decisions on major Federal actions that could have environmental impacts anywhere beyond the borders of the United States. The FAA has determined that this action is exempt pursuant to Section 2-5(a)(i) of Executive Order 12114 because it does not have the potential for a significant effect on the environment outside the United States.

In accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 8-6(c), FAA has prepared a memorandum for the record stating the reason(s) for this determination; this memorandum has been placed in the docket for this rulemaking.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

This rule is not subject to the requirements of E.O. 13771 (82 FR 9339, Feb. 3, 2017) because it is issued with respect to a national security function of the United States.

An electronic copy of rulemaking documents may be obtained from the internet by—

• Searching the Federal eRulemaking Portal (http://www.regulations.gov);

• Visiting the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies; or

• Accessing the Government Publishing Office's web page at http://www.fdsys.gov.

Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Please identify the docket or amendment number of this rulemaking in your request.

Except for classified material, all documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal referenced above.

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations, part 91, as follows:

On November 2, 2016, the Department published a final rule in the Federal Register titled “Reporting of Data for Mishandled Baggage and Wheelchairs and Scooters Transported in Aircraft Cargo Compartments.” 81 FR 76300. This November 2 final rule changed the methodology that airlines are required to use in reporting to the Department their mishandled baggage data, from the number of mishandled baggage reports (MBRs) filed with the airline and the number of domestic passenger enplanements to the number of mishandled bags and the number of enplaned bags.1 The rule also requires airlines to report separate statistics for mishandled wheelchairs and scooters. On November 3, 2016, the Department published another final rule titled “Enhancing Airline Passenger Protections III,” 81 FR 76826, that, among other things, lowered the reporting carrier threshold for mishandled baggage from at least 1 percent of domestic scheduled passenger revenues to at least 0.5 percent. The November 3 final rule further requires reporting carriers that market domestic scheduled codeshare flights to file separate mishandled baggage data for codeshare flights that carry only one U.S. carrier's code. In March 2017, the Department provided that carriers would be required to comply with the changes to mishandled baggage reporting requirements made by these two final rules with respect to air transportation occurring on or after January 1, 2019. See 82 FR 14437 (March 21, 2017); 82 FR 14604 (March 22, 2017).

On October 5, 2018, the President signed the FAA Reauthorization Act of 2018 (FAA Act) into law. See Public Law 115-254. Section 441 of the FAA Act states that “[t]he compliance date of the final rule, dated November 2, 2016, on the reporting of data for mishandled baggage and wheelchairs in aircraft cargo compartments (81 FR 76300) shall be effective not later than 60 days after the date of enactment of this Act.” 2

By this notification, the Office of Aviation Enforcement and Proceedings (Enforcement Office) is providing guidance to affected U.S. carriers on compliance with mishandled baggage, wheelchair, and scooter reporting requirements following the enactment of the FAA Act. Section 441 of the FAA Act provides that the compliance date for the November 2, 2016 final rule shall be effective not later than 60 days after enactment of the Act, which is December 4, 2018. Accordingly, airlines determined by the Department's Office of Airline Information (OAI) as accounting for at least 1 percent of domestic scheduled passenger revenues for calendar year 2018 3 must submit mishandled baggage data to the Department using the new mishandled baggage methodology and must separately report statistics for mishandled wheelchairs and scooters for domestic scheduled flights they operate beginning December 4, 2018 and through December 31, 2018. See 81 FR 73000 (November 2, 2016). The airlines must submit this data to the Department no later than January 15, 2019.4 The data would consist of: (1) Operating carrier code; (2) month and year of data; (3) number of mishandled bags; (4) number of bags enplaned; (5) number of mishandled wheelchairs and scooters; (6) number of wheelchairs and scooters enplaned; (7) certification that to the best of the signing official's knowledge and belief the data is true, correct, and complete; and (8) date of submission, name of airline representative, and signature.

If a reporting carrier is unable to report accurate data on the total number of mishandled bags and enplaned bags for the entire reportable period beginning December 4, 2018, and ending December 31, 2018, the Enforcement Office will exercise its enforcement discretion as appropriate.5 An airline should inform the Enforcement Office no later than January 3, 2019, if the airline is unable to provide accurate mishandled baggage data using the methodology set forth in the November 2, 2016 rule for the December 2018 reportable period. To the extent the Enforcement Office decides not to pursue action against an airline that does not report the required data because of reliability concerns, in the interest of providing air travel consumers with access to reliable mishandled baggage data, the Enforcement Office expects that the airline will accurately report mishandled baggage data to the Department using the prior mishandled bag reporting methodology (i.e., the total number of passengers enplaned and the total number of MBRs filed with the airline in the manner described in 14 CFR 234.6(a) and OAI Technical Reporting Directive #29A, for the flights it operates December 1 through 31, 2018). Even if an airline indicates an inability to report accurately the total number of mishandled bags and enplaned bags, the Enforcement Office will expect the airline to accurately report the total number of mishandled wheelchairs and scooters and total number of wheelchair and scooters enplaned. Because the Enforcement Office expects that airlines should be able to accurately report mishandled wheelchair and scooter data, the Enforcement Office requests a detailed explanation no later than January 3, 2019, from any airline asserting that it is not able to accurately report wheelchair and scooter data to the Department for flights beginning December 4, 2018.

Before Commissioners: Cheryl A. LaFleur, Neil Chatterjee, and Richard Glick.

1. Pursuant to section 215(d)(2) of the Federal Power Act (FPA), the Commission approves supply chain risk management Reliability Standards CIP-013-1 (Cyber Security—Supply Chain Risk Management), CIP-005-6 (Cyber Security—Electronic Security Perimeter(s)) and CIP-010-3 (Cyber Security—Configuration Change Management and Vulnerability Assessments).1 The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), submitted the supply chain risk management Reliability Standards for approval in response to a Commission directive in Order No. 829.2 As discussed below, we approve the supply chain risk management Reliability Standards as they are responsive to Order No. 829 and improve the electric industry's cybersecurity posture by requiring that entities mitigate certain cybersecurity risks associated with the supply chain for BES Cyber Systems.3

I. Background

Upon request, FDA has classified the high flow humidified oxygen delivery device as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

On January 3, 2017, Vapotherm, Inc. submitted a request for De Novo classification of the Precision Flow® HVNI. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on April 10, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 868.5454. We have named the generic type of device high flow humidified oxygen delivery device, and it is identified as a prescription device that delivers high flow oxygen with humidification for patients who are suffering from respiratory distress and/or hypoxemia.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

At the time of classification, high flow humidified oxygen delivery devices are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 868 is amended as follows:

Upon request, FDA has classified the active implantable bone conduction hearing system as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

On February 16, 2017, MED-EL Elektromedizinische Geraete GmbH submitted a request for De Novo classification of the BONEBRIDGE. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on July 20, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 874.3340. We have named the generic type of device active implantable bone conduction hearing system, and it is identified as a prescription device consisting of an implanted transducer, implanted electronics components, and an audio processor. The active implantable bone conduction hearing system is intended to compensate for conductive or mixed hearing losses by conveying amplified acoustic signals to the cochlea via mechanical vibrations on the skull bone.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

At the time of classification, active implantable bone conduction hearing systems are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 874 is amended as follows:

The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this seventh triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of certain classes of such works. This determination is based upon the Recommendation of the Acting Register of Copyrights, which was transmitted to the Librarian on October 5, 2018.1

The below discussion summarizes the rulemaking proceeding and Register's Recommendation, announces the Librarian's determination, and publishes the regulatory text specifying the exempted classes of works. A more complete discussion of the rulemaking process, the evidentiary record, and the Acting Register's analysis can be found in the Acting Register's Recommendation, which is posted at www.copyright.gov/1201/2018/.

Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA, which added a new chapter 12 to title 17 of the U.S. Code, prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In enacting this aspect of the law, Congress observed that technological protection measures (“TPMs”) can “support new ways of disseminating copyrighted materials to users, and . . . safeguard the availability of legitimate uses of those materials by individuals.” 2

Section 1201(a)(1) provides in pertinent part that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].” Under the statute, to “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” 3 A technological measure that “effectively controls access to a work” is one that “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” 4

Section 1201(a)(1) also includes what Congress characterized as a “fail-safe” mechanism,5 which requires the Librarian of Congress, following a rulemaking proceeding, to publish any class of copyrighted works as to which the Librarian has determined that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding three-year period, thereby exempting that class from the prohibition for that period.6 The Librarian's determination to grant an exemption is based upon the recommendation of the Register of Copyrights, who conducts the rulemaking proceeding.7 The Register, in turn, consults with the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (“NTIA”), in the course of formulating her recommendation.8

The primary responsibility of the Register and the Librarian in the rulemaking proceeding is to assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To do this, the Register develops a comprehensive administrative record using information submitted by interested members of the public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record.

Under the statutory framework, the Librarian, and thus the Register, must consider “(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” 9

Significantly, exemptions adopted by rule under section 1201(a)(1) apply only to the conduct of circumventing a technological measure that controls access to a copyrighted work. Other parts of section 1201, by contrast, address the manufacture and provision of—or “trafficking” in—products and services designed for purposes of circumvention. Section 1201(a)(2) bars trafficking in products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file),10 while section 1201(b) bars trafficking in products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner in their works (for example, technology that prevents the work from being reproduced).11 The Librarian of Congress has no authority to adopt exemptions for the anti-trafficking prohibitions contained in section 1201(a)(2) or (b).12 More broadly, activities conducted under the regulatory exemptions must still comply with other applicable laws, including non-copyright provisions.

Also significant is the fact that the statute contains certain permanent exemptions to permit specified uses. These include: Section 1201(d), which exempts certain activities of nonprofit libraries, archives, and educational institutions; section 1201(e), which exempts “lawfully authorized investigative, protective, information security, or intelligence activity” of a state or the federal government; section 1201(f), which exempts certain “[r]everse engineering” activities to facilitate interoperability; section 1201(g), which exempts certain types of research into encryption technologies; section 1201(h), which exempts certain activities to prevent the “access of minors to material on the internet”; section 1201(i), which exempts certain activities “solely for the purpose of preventing the collection or dissemination of personally identifying information”; and section 1201(j), which exempts certain acts of “security testing” of computers and computer systems.

In adopting the DMCA, Congress imposed legal and evidentiary requirements for the section 1201 rulemaking proceeding, as discussed in greater detail in the Acting Register's Recommendation and the Copyright Office's recent policy study on section 1201.13 The Register will recommend granting an exemption only “when the preponderance of the evidence in the record shows that the conditions for granting an exemption have been met.” 14 “[I]t is the totality of the rulemaking record (i.e., the evidence provided by commenters or administratively noticed by the Office) that must, on balance, reflect the need for an exemption by a preponderance of the evidence. Such evidence must, on the whole, show that it is more likely than not that users of a copyrighted work will, in the succeeding three‐year period, be adversely affected by the prohibition on circumvention in their ability to make noninfringing uses of a particular class of copyrighted works.” 15

To establish a case for an exemption, proponents must show at a minimum (1) that uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses. In addition, the Librarian must also examine the statutory factors listed in section 1201(a)(1)(C): “(i) The availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” In some cases, weighing these factors requires the consideration of the benefits that the technological measure brings with respect to the overall creation and dissemination of works in the marketplace, in addition to any negative impact.

Finally, when granting an exemption, section 1201(a)(1) specifies that the exemption adopted as part of this rulemaking must be defined based on “a particular class of works.” 16 Among other things, the determination of the appropriate scope of a “class of works” recommended for exemption may also take into account the adverse effects an exemption may have on the market for or value of copyrighted works. Accordingly, “it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption.” 17

Following a comprehensive policy study, and in response to stakeholder feedback, for this seventh triennial proceeding, the Office introduced a streamlined process to renew section 1201 exemptions adopted during the 2015 rulemaking.18 Previously, in recognition of legislative history stating that the basis of an exemption should be established de novo in each triennial proceeding,19 the Office had required the factual record be developed anew in each rulemaking.20 In its Section 1201 Report, the Office evaluated the possibility of a renewal process, noting a “broad consensus in favor of streamlining the process for renewing exemptions to which there is no meaningful opposition.” 21 As described in further detail in that report, the Office ultimately concluded that “the statutory language appears to be broad enough to permit determinations to be based upon evidence drawn from prior proceedings, but only upon a conclusion that this evidence remains reliable to support granting an exemption in the current proceeding.” 22 The Office concluded that renewal may be sought only for exemptions in their current form, without modification, and that the Register “must apply the same evidentiary standards in recommending the renewal of exemptions as for first- time exemption requests.” 23

The Office detailed the renewal process in its notices for this proceeding.24 Streamlined renewal is based upon a determination that, due to a lack of legal, marketplace, or technological changes, the factors that led the Register to recommend adoption of the exemption in the prior rulemaking are expected to continue into the forthcoming triennial period.25 That is, the same material facts and circumstances underlying the previously-adopted regulatory exemption may be relied on to renew the exemption.26 Because the statute itself requires that exemptions must be adopted upon a fresh determination concerning the next three-year period, the fact that the Librarian previously adopted an exemption creates no presumption that readoption is appropriate. Instead, the Office first solicited petitions summarizing the continuing need and justification for the exemption, and petitioners signed a declaration stating that, “to the best of their personal knowledge, there has not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified.” 27 Next, the Office solicited comments from participants opposing the readoption of the exemption. Opponents were required to provide evidence that would allow the Acting Register to reasonably conclude that the prior rulemaking record and any further information provided in the petitions are insufficient for her to recommend renewal without the benefit of a further developed record. For example, “a change in case law might affect whether a particular use is noninfringing, new technological developments might affect the availability for use of copyrighted works, or new business models might affect the market for or value of copyrighted works.” 28 If the appropriateness of renewing an exemption is meaningfully contested, that exemption would be fully noticed for written comment and public hearing to generate an updated administrative record for the Register to evaluate whether to recommend readoption, modification, or elimination of that exemption to the Librarian.29

The streamlined renewal process elicited favorable responses during the 2018 rulemaking hearings. As detailed below, as a result of this new process, the Acting Register was able to recommend renewal of all exemptions adopted in the 2015 rulemaking, and subsequently consider whether some of them should be modified to accommodate additional new uses through the development of an expanded administrative record.

In this rulemaking, the Copyright Office used the phased comment structure introduced in the last proceeding, to best facilitate a clear and thorough record. As promised in its Section 1201 Report,30 the Office also created video tutorials explaining the rulemaking process, issued the Notice of Proposed Rulemaking (“NPRM”) earlier to give parties more time to participate, and offered increased opportunities for participant input, including through an established procedure for transparent ex parte meetings.

The Office initiated the seventh triennial rulemaking proceeding through a Notice of Inquiry (“NOI”) on June 30, 2017.31 The NOI requested petitions for renewals, petitions in opposition to renewal, and any petitions for new exemptions. In response, the Office received thirty-nine renewal petitions, five comments regarding the scope of the renewal petitions, and one comment in opposition to renewal of a current exemption.32 The Office also received twenty-three petitions for new exemptions, including seventeen seeking to expand certain current exemptions, and six petitions for new exemptions.

Next, on October 26, 2017, the Office issued its NPRM identifying the existing exemptions for which the Acting Register intended to recommend renewal, and outlined the proposed classes for new exemptions (including proposed expansions of previously- adopted exemptions) for which three rounds of public comments were initiated.33 Those classes were organized into twelve classes of works. Seven of the twelve proposed exemptions seek expansions of existing exemptions, while five propose new exemptions. The Office received 181 total submissions in response to the NPRM, substantially less than the approximately 40,000 submissions received in the last rulemaking.

After analyzing the written comments, the Office held seven days of hearings in Washington, DC (April 10-13) and Los Angeles, California (April 23-25). For the first time, the roundtables at both locations held audience participation panels and were live streamed online. Video recordings for these roundtables are available through the Office's website and YouTube pages.34 In total, the Office heard testimony from seventy-seven individuals. After the hearings, the Office issued questions to hearing participants in four proposed classes and received eighteen responses.35 Subsequently, the Office received an unsolicited letter from the Computer Crime and Intellectual Property Section of the Criminal Division of the United States Department of Justice (“CCIPS”) regarding Proposed Class 10, and the Office solicited comment from Class 10 participants in response.36

As noted in its NPRM, the Office determined that further informal communications with non-governmental participants might be beneficial in limited circumstances.37 The Office thus established guidelines for ex parte meetings, noting that the Office will not consider or accept any new documentary materials at these meetings, and requiring participants to provide a letter summarizing the meeting for the Office to include in the rulemaking record.38 The Office held nine ex parte meetings with participants concerning five proposed classes.39

As required by section 1201(a)(1), the Acting Register consulted with NTIA during this rulemaking. NTIA provided input at various stages and participated in the public hearings held in Washington, DC and Los Angeles. NTIA formally communicated its views on each of the proposed exemptions to the Acting Register on September 25, 2018.40

As set forth in the NPRM, the Acting Register received petitions to renew every one of the exemptions adopted pursuant to the sixth triennial rulemaking. To the extent any renewal petition proposed uses beyond the current exemption, the Office disregarded those portions of the petition for purposes of considering the renewal of the exemption, and instead focused on whether it provided sufficient information to warrant readoption of the exemption in its current form.41 While a single party filed an opposition to renewal, the Acting Register concluded that its opposition was not sufficiently material to undermine the conclusion that the record and legal reasoning from the prior rulemaking supported renewal.42 Finding the renewal petitions sufficient under the guidelines outlined above, the Acting Register thus recommended renewal of each of the existing exemptions.43 The existing exemptions, and the bases for the recommendation to readopt each exemption in accordance with the streamlined renewal process, are summarized below. Where noted, these exemptions served as a baseline for the Acting Register in considering subsequent requests for expansion.

Multiple organizations petitioned to renew the exemption for literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired, or have print disabilities. No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that individuals who are blind, visually impaired, or print disabled are significantly disadvantaged with respect to obtaining accessible e-book content because TPMs interfere with the use of assistive technologies such as screen readers and refreshable Braille displays. In addition, the petitioners demonstrated personal knowledge and experience with regard to the assistive technology exemption; they are all organizations that advocate for the blind, visually impaired, and print disabled.

Accordingly, the Acting Register recommends renewal of the following exemption:

Hugo Campos, member of the Coalition of Medical Device Patients and Researchers, and represented by the Harvard Law School Cyberlaw Clinic, petitioned to renew the exemption covering access to patient data on networked medical devices. No oppositions were filed against the petition to renew this exemption. Mr. Campos's petition demonstrated the continuing need and justification for the exemption, stating that patients continue to need access to data output from their medical devices to manage their health. Mr. Campos himself is a patient needing access to the data output from his medical device.

Accordingly, the Acting Register recommends renewal of the following exemption:

Multiple organizations petitioned to renew the exemption for computer programs that operate cellphones, tablets, mobile hotspots, or wearable devices (e.g., smartwatches), to allow connection of a used device to an alternative wireless network (“unlocking”). No oppositions were filed against the petitions seeking to renew this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that consumers of the enumerated products continue to need to be able to unlock the devices so they can switch network providers. For example, the Institute of Scrap Recycling Industries, Inc. (“ISRI”) stated that its members continue to purchase or acquire donated cell phones and tablets, and try to reuse them, but that wireless carriers still lock devices to prevent them from being used on other carriers. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption: Competitive Carriers Association, Owners' Rights Initiative (“ORI”), and ISRI represent companies that rely on the ability to unlock cellphones.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 5.

Multiple organizations petitioned to renew the exemptions for computer programs that operate smartphones, smart TVs, tablets, or other all-purpose mobile computing devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”). The petitions demonstrate the continuing need and justification for the exemptions, and that petitioners had personal knowledge and experience with regard to these exemptions. Specifically, the petitions state that, absent the exemptions, TPMs applied to the enumerated products would have an adverse effect on noninfringing uses, such as being able to install third-party applications on a smartphone or to download third-party software on a smart TV to enable interoperability. For example, the Electronic Frontier Foundation's (“EFF's”) petition outlined its declarant's experience searching current mobile computing device markets and technologies, working as a software engineer, and participating in four prior 1201 rulemakings. Similarly, the Libiquity petition was submitted by a person who “work[s] with the operating system and many of the system libraries that lie at the core of the firmware systems of a large majority of smartphones, portable all-purpose mobile computing devices, and smart televisions.” In a brief two-page comment, BSA | The Software Alliance (“BSA”) opposed the readoption of this exemption, asserting that “alternatives to circumvention exist,” and that “jailbreaking can undermine the integrity and security of a platform's operating system in a manner that facilitates copyright infringement and exposes users to heightened risks of privacy violations.”

In the NPRM, the Office concluded that BSA's opposition was not sufficient to draw the conclusion that the past rulemaking record is no longer reliable, or that the reasoning adopted in the Register's 2015 Recommendation cannot be relied upon for the next three-year period. Specifically, the Office stated that BSA's comment largely re-articulated a general opposition to a jailbreaking exemption, and noted that the past three rulemakings have adopted some form of an exemption for jailbreaking certain types of mobile computing devices. The Office also noted that BSA had failed to identify any specific circumvention alternatives, changes in case law, new technological developments, or new issues that had not already been considered and evaluated in granting the exemption previously.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 6.

Multiple organizations petitioned to renew the exemption for computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, and modification of the vehicle. The petitions demonstrated the continuing need and justification for the exemption to prevent owners of motorized land vehicles from being adversely impacted in their ability to diagnose, repair, and modify their vehicles as a result of TPMs that protect the copyrighted computer programs on the electronic control units (“ECUs”) that control the functioning of the vehicles. Indeed, the Motor & Equipment Manufacturers Association, which during the sixth triennial rulemaking initially opposed any exemption that would impact the software and TPMs in vehicles, now supports the exemption as striking an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance. The petitioners demonstrated personal knowledge and experience with regard to this exemption; each either represents or gathered information from individuals conducting repairs or businesses that manufacture, distribute, and sell motor vehicle parts, and perform vehicle service and repair.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 7.

Multiple organizations and security researchers petitioned to renew the exemption for purposes of good-faith security research. The petitioners demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to this exemption. For example, Professors Bellovin, Blaze, and Heninger stated that they have conducted their own security research in reliance on the existing exemption, and that they “regularly engage” with other security researchers who have similarly relied on the exemption. They provided an example of a recent computer security conference in which thousands of participants relied on the existing exemption to examine and test electronic voting devices—the results of which were reported to election officials to improve the security of their voting systems.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 10.

Michael Weinberg and ORI jointly petitioned to renew the exemption for computer programs that operate 3D printers to allow use of alternative feedstock. No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience, in particular, through Mr. Weinberg's experience petitioning for the exemption adopted in 2015. In addition, the petition states that printers continue to restrict the use of third-party feedstock, thereby requiring renewal of the exemption.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 12.

Multiple organizations petitioned to renew the exemption for video games for which outside server support has been discontinued. The petitions stated that individuals still need the exemption to engage in continued play and libraries and museums continue to need the exemption to preserve and curate video games in playable form. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the 1201 triennial rulemaking relating to access controls on video games and consoles, and/or representing major library associations with members that have relied on this exemption.

Accordingly, the Acting Register recommends renewal of this exemption and will consider proposed expansions below in the discussion on Proposed Class 8.

Multiple individuals and organizations petitioned to renew the exemption consisting of multiple subparts covering use of short portions of motions pictures for various educational and derivative uses. No oppositions were filed. Petitions to renew the various subparts of the exemption are discussed below.

Multiple individuals and organizations petitioned to renew the exemption's subpart covering use of motion picture clips for educational uses by college and university instructors and students (codified at 37 CFR 201.40(b)(1)(iv) (2016)). No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to the exempted use. For example, Professors Decherney, Sender, and Carpini, the Department of Communications at the University of Michigan (“DCSUM”), the International Communication Association (“ICA”), the Society for Cinema and Media Studies (“SCMS”), the American Association of University Professors (“AAUP”), and the Library Copyright Alliance (“LCA”) stated that courses on video essays (or multimedia or videographer criticism), now taught at many universities, would not be able to exist without relying on this exemption. Similarly, Professor Hobbs, who represents more than 17,000 digital and media literacy educators, and the National Association for Media Literacy Education (“NAMLE”), an organization devoted to media literacy with more than 3,500 members, stated that teachers must sometimes circumvent a DVD protected by the Content Scramble System (“CSS”) when screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.

Multiple organizations petitioned to renew the exemption's subparts covering use of motion picture clips for educational uses by K-12 instructors and students. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, stating that K-12 instructors and students continue to rely on excerpts from digital media for class presentations and coursework, and must sometimes use screen-capture technology. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through representation of thousands of digital and literacy educators and/or members supporting K-12 instructors and students, combined with past participation in the section 1201 triennial rulemaking.

Professors Decherney, Sender, and Carpini, DCSUM, ICA, SCMS, and LCA petitioned to renew the exemption's subpart covering use of motion picture clips for educational uses in MOOCs. No oppositions were filed against readoption. The petition demonstrated the continuing need and justification for the exemption, stating that instructors continue to rely on the exemption to develop, provide, and improve MOOCs, as well as increase the number of (and therefore access to) MOOCs in the field of film and media studies. For example, the declarant, Professor Decherney, demonstrated personal knowledge by describing his reliance on the exemption to teach MOOCs on film and media studies.

Multiple organizations petitioned to renew the subpart of the exemption covering use of motion picture clips for educational uses in digital and literacy programs offered by libraries, museums, and other nonprofits. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and demonstrated personal knowledge and experience with regard to the exempted use. For example, LCA stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and literacy programs. In addition, Professor Hobbs and NAMLE stated that librarians will continue to rely on the exemption for their digital and literacy programs, and to advance the digital media knowledge of their patrons.

A professor and two organizations collectively petitioned to renew the subpart of the exemption covering the use of motion picture clips for multimedia e-books offering film analysis. No oppositions were filed against readoption. The petition demonstrated the continuing need and justification for the exemption, attesting that the availability of video necessary for authors to undertake film analysis in e-books continues to be limited to formats encumbered by technological protection measures. In addition, the petitioners demonstrated personal knowledge through Professor Buster's continued work on an e-book series based on her lecture series, “Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,” and Authors Alliance's feedback that its members continue to desire authoring e-books that incorporate film for the purpose of analysis.

Multiple organizations petitioned to renew the subpart of the exemption covering the use of motion picture clips for uses in documentary films. No oppositions were filed against readoption. The petitions summarized the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to the exempted use. For example, Film Independent (“FI”), the International Documentary Association (“IDA”), Kartemquin Educational Films, Inc. (“KEF”), the Center for Independent Documentary (“CID”), and Women in Film and Video (“WIFV”) stated that TPMs such as encryption continue to prevent filmmakers from accessing needed material in a sufficiently high quality to satisfy demands of distributors and viewers. Petitioners state that they personally know many filmmakers who have found it necessary to rely on this exemption, and will continue to do so.

Two organizations petitioned to renew the subpart of the exemption covering the use of motion picture clips for uses in noncommercial videos. No oppositions were filed against readoption. The petitions demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to the exempted use. For example, the Organization for Transformative Works (“OTW”) has advocated for the noncommercial video exemption in past triennial rulemakings, and has heard from a number of noncommercial remix artists who have used the exemption and anticipate needing to use it in the future. Similarly, New Media Rights (“NMR”) stated that it has spoken to a number of noncommercial video creators who have relied on this exemption, and intend to do so in the future.

Accordingly, the Acting Register recommends renewal of this exemption, including all of its subparts, and will consider proposed expansions below in the discussion on Proposed Class 1.

Based upon the record in this proceeding regarding proposed expansions to existing exemptions or newly proposed exemptions, the Acting Register recommends that the Librarian determine that the following classes of works be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

Several petitions sought expansion of the existing exemption for circumvention of access controls protecting “short portions” of motion pictures on DVDs, Blu-Ray discs, and digitally transmitted video for purposes of criticism and comment by various users, including creators of noncommercial videos, college and university faculty and students, faculty of MOOCs, documentary filmmakers, and for nonfiction multimedia e-books offering film analysis. With the exception of one petition, proponents sought to keep the limitation to circumvention for uses of “short portions” of motion pictures, which the Register has previously found to be “integral” in recommending the current exemption. The proposed expansions implicate the same types of TPMs regardless of proposed noninfringing use, namely CSS-protected DVDs, AACS-protected Blu-ray discs, and various TPMs applicable to online distribution services. Because the new proposals raised some shared concerns, including the impact of TPMs on the alleged noninfringing uses of motion pictures and whether alternative methods of accessing the content could alleviate potential adverse impacts, the Office grouped these petitions into one class. This approach also accounted for a petition which proposed an “overarching exemption that would embrace multiple audiovisual classes” and collapse (essentially) all of the subparts in the existing exemption to eliminate limitations on the types of user or use—and instead allow circumvention so long as the purpose is for criticism and comment.

For several of the activities it covers, the current exemption expressly permits the use of screen-capture technology and also allows circumvention only where the user “reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” Here, proponents sought to remove references to screen-capture technology, arguing that it is not a viable alternative because it does not permit the proposed uses, or else results in degraded-quality (and thus unusable) content. Others contended that the dual references to screen-capture technology are confusing. In response, opponents argued that screen-capture technology remains an adequate alternative to circumvention.

In the 2015 rulemaking, the Register concluded that certain uses of motion picture clips for criticism and comment do not require access to higher-quality content, and that screen-capture technology may be an alternative to circumvention—but that it can be unclear to users as to whether screen-capture technology may in fact involve circumvention. Accordingly, in this rulemaking the Acting Register recommended retaining a screen-capture provision for these categories to address the possibility of circumvention when using this technology. In addition, the Acting Register found it appropriate to continue to distinguish between purposes requiring high-quality motion picture clips and more general purposes that do not.

Opponents argued that the exemption should not be expanded to include AACS2 technology, which is employed to protect ultra-high-definition or “4K” content distributed on Ultra HD Blu-ray discs. Opponents maintained that none of the petitions expressly sought extension to AACS2, and that the current exemption does not extend to AACS2 on Ultra HD Blu-ray discs, as that technology did not exist at the time of the 2015 rulemaking. In response, proponents asserted that the Acting Register should extend the proposed exemption to AACS2 technology because although AACS2 is different in form, it is fundamentally the same in function.

The Acting Register found the record insufficient to support extending the proposed class to AACS2. Her analysis of this proposed exemption thus addressed only TPMs employed on DVDs and Blu-ray discs, and by various online streaming services to protect motion pictures.

EFF, NMR, and OTW proposed permitting circumvention to make use of motion picture excerpts so long as the purpose is for criticism and comment. They did not provide specific examples of proposed noninfringing uses or analyze such proposed uses under the 1201 statutory factors, but rather focused on “the value of adopting a simple overarching exemption that would embrace multiple audiovisual classes” for purposes of criticism and comment. EFF, NMR, and OTW asserted that the existing language is “practically unreadable” due to their complexities, and “a challenge for clients and attorneys alike to apply in practice.”

Opponents contended that the petition to create a single overarching exemption overstates the complexity of the existing exemption, and that the proposed expansion would eliminate carefully drawn distinctions among potential users of motion picture content. Opponents also asserted that to be appropriately narrow, exemptions should identify the specific persons who will be adversely affected in their abilities to make noninfringing uses by the section 1201 prohibition.

NTIA opposed the removal of all limitations on the types of user or use, concluding that “eliminating all of the categories of specific users . . . would stray too far from the statutory requirement of specificity.”

The Acting Register declined to recommend adopting EFF, NMR, and OTW's proposed language, finding it overly broad for purposes of section 1201, and inconsistent with the rulemaking record upon which the current exemption has been adopted. She noted that courts evaluate fair use claims on a case-by-case basis, and the context in which use of the work is being made is part of that inquiry (e.g., commercial versus noncommercial use). She found that the proposed language would eliminate these legally important distinctions.

BYU filed a petition to create a single consolidated exemption that would permit circumvention for nonprofit educational purposes in accordance with sections 110(1) and 110(2) of the Copyright Act. BYU proposed eliminating the “criticism and comment” limitation, references to screen-capture technology, and distinctions based on education level and type of educational course.

Opponents argued that although section 110(1) allows certain public performances of complete motion pictures in classrooms without obtaining licenses, it does not allow those performances to be made from unauthorized copies. Opponents also noted that sections 110(1) and 110(2) provide exceptions only to the public performance and display rights, not to the rights of reproduction or distribution, and that therefore they would not fully cover the proposed uses, which involve making and “librarying” copies of full-length films.

NTIA recommended allowing circumvention for colleges and universities to make use of entire motion pictures. In its view, the storage of a copy “in a central secured server available only for transmission to the institution's classrooms” is “not fundamentally different from the uses allowed by the existing exemption” for purposes of analyzing whether the activity is a fair use.

The Acting Register concluded that section 110 cannot, by itself, establish that BYU's proposed activities are noninfringing because any performances of motion pictures under sections 110(1) and 110(2) must originate from lawfully acquired copies. The Acting Register thus evaluated whether the copies made and used to facilitate the proposed motion picture performances were themselves noninfringing under section 112(f) and/or the fair use doctrine. The Acting Register determined that on its face, section 112(f) does not permit nonprofit educational institutions to make copies to facilitate performances under section 110(1). She found, however, that section 112(f) does support a conclusion that making and temporarily storing digital copies of motion pictures to perform “reasonable and limited portions” in distance teaching would be noninfringing, assuming the other requirements of section 110(2) are met. But she determined that such activity appears to be already covered by the existing exemption.

Regarding the use of short motion picture clips in face-to-face teaching, the Acting Register concluded that the record demonstrates that a significant number of the proposed uses are likely to be fair, such as using short film clips to create compilations from foreign language films with and without subtitles. By contrast, based on the relevant case law, the Acting Register could not conclude as a general matter that the contemplated uses of full-length motion pictures are likely to be fair. She found that DVD and Blu-ray players are still widely available on the market and that extending the exemption to such uses could undermine the value of the market for works in those formats. She noted that, although institutions may incur a cost in re-purchasing digital versions of audiovisual works, the section 1201 exemption process is not meant to guarantee consumers the ability to access content through their preferred method or format.

Ultimately, the Acting Register recommended an expansion that allows K-12 and university faculty and students to engage with motion picture excerpts of high quality in contexts other than courses requiring close analysis of film excerpts, as well as for teaching or scholarship more generally. Based upon additional examples provided in this rulemaking cycle, the Acting Register recommended that the exemption retain the requirement that a person must reasonably believe that non-circumventing alternatives are unworkable, but remove the references to “film studies or other courses requiring close analysis” and eliminate distinctions between K-12 and universities and colleges, as well as between faculty and students. The Acting Register recommended, however, that the exemption require K-12 students to act under the direct supervision of K-12 educators.

Professors Decherney, Sender, Carpini, and DCSUM requested an expansion to allow faculty of MOOCs to circumvent for “all online courses” (i.e., remove the limitation to “film studies or other courses requiring close analysis of film and media excerpts”), and for MOOCs offered by unaccredited and for-profit educational institutions. They maintained that without expanding the exempted use of MOOCs, there would be no ability for unaccredited, for-profit, or for-credit online educational offerings to use motion picture clips in MOOCs without licensing. They also argued that because the motion picture clips in this context would be used exclusively for educational purposes, such use would be unlikely to harm the market for motion pictures.

Opponents argued that proponents failed to support their assertion that including for-profit and unaccredited educational institutions likely constitutes fair use, and that the record lacked any examples of for-profit or unaccredited educational institutions wanting, but unable, to offer MOOCs, suggesting the expansion would cover only speculative uses.

Based on its review of the record, NTIA recommended expansion to for-profit educational institutions, but not to unaccredited educational institutions.

The Acting Register concluded that the record lacked examples sufficient to evaluate or recommend expansion to for-profit or unaccredited educational institutions, and did not demonstrate that section 1201 is inhibiting the use of motion pictures in online education offered by for-profit and/or unaccredited educational institutions. The Acting Register also found that proponents' broadly framed proposal seeking to encompass “all online courses” would seemingly encompass any online video that could be characterized as an educational experience. The Register therefore recommended that the MOOCs language from the existing exemption be readopted without substantive changes.

FI, IDA, and KEF sought expansion of the current exemption to permit circumvention for use of motion picture clips in all types of films (i.e., remove the “documentary” limitation), a request rejected by the Register in 2015. Proponents argued that the exemption should be expanded because defining a “documentary” film is difficult, as many films that are not traditionally classified as a “documentary” use motion picture excerpts to engage in educational and social commentary. Proponents also asserted that many filmmakers do not know whether they are permitted to use the exemption.

The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the Acting Register evaluated the proposed expansion on the same grounds. Proponents provided multiple examples of non-documentary films using short motion picture clips for parody or for the clip's biographical or historical significance, ostensibly to provide criticism or commentary. Proponents also disputed that either clips created using non-circumventing screen capture technology, or clips obtained via licensing are viable alternatives for the proposed uses, and argued that expansion of the exemption to non-documentaries would not affect the market for motion pictures.

Opponents maintained that proponents failed to develop a record of likely noninfringing uses to support extension of the exemption to non-documentary films. Opponents also argued that the proposed uses would negatively impact the clip licensing market for motion pictures, and that licenses are readily available for using short portions of motion pictures. Opponents further contended that screen-capture technologies serve as valid alternatives to circumvention.

NTIA concluded that the existing exemption should be expanded to all films. It maintained that the record supports a finding that in many instances the use of short portions of motion pictures is likely a noninfringing fair use and that opponents failed to demonstrate the expansion to non-documentaries would cause market harm.

Based on the extensive record, the Acting Register recommended that the existing exemption for documentary films be expanded to include a subset of fictional (e.g., narrative) films for purposes of criticism and comment, where the clip is used for parody or its biographical or historically significant nature. She concluded this limitation would best reflect the examples in the record, many of which appear to involve the use of clips for purposes of criticism and comment, while preserving the requirement that filmmakers continue to seek authorization before using excerpts for general storytelling uses. The Acting Register found that the use of small portions of films for these purposes is consistent with principles of fair use and is unlikely to supplant the market for motion pictures, but cautioned that filmmakers would continue to need to obtain authorization for uses of clips outside of these uses.

The Authors Alliance, AAUP, OTW, the Interactive Fiction Technology Foundation, and Professor Buster (collectively, “Authors Alliance et al.”) sought expansion of the current exemption to permit circumvention for use of motion picture clips in all nonfiction multimedia e-books by removing the “offering film analysis” limitation. Authors Alliance et al. also sought expansion to fictional multimedia e-books and removal of references to screen-capture technology.

The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the proposed expansion was evaluated on the same grounds. Proponents asserted that the uses of clips for comment or criticism in nonfiction multimedia e-books beyond those offering film analysis, as well as fictional multimedia e-books, are transformative and thus fair. Proponents also argued that expansion will not negatively impact the market for or value of copyrighted works. Proponents asserted that screen capture is an inadequate alternative to circumvention and that licensing remains an unworkable alternative due to high fees, difficulties in locating the rightsholders, and the delays caused by protracted negotiations.

In response, opponents argued that the record lacked evidence of actual use of a motion picture clip in a fictional e-book or in an “other nonfiction” e-book, and that in the absence of actual use, evaluating the proposal is all but impossible. Regarding nonfictional uses, opponents asserted that many of the alleged additional uses would qualify under the current “film analysis” limitation. As to fictional uses, opponents maintained that the creation of fan fiction multimedia e-books would frequently infringe the right to prepare derivative works. Opponents also asserted that as with the proposed filmmaking expansion, there will be harm to the clip licensing market if the proposed e-books uses are exempted.

NTIA recommended expanding the exempted use to include all nonfiction multimedia e-books (i.e., eliminating the “offering film analysis” limitation), but did not recommend expansion to fictional multimedia e-books.

The Acting Register found that the record failed to establish that the proposed uses in fictional e-books would likely be noninfringing, and thus she did not recommend expanding the exemption to such works. She did find, however, that the record supported expansion to all nonfiction multimedia e-books. Such an expansion, she concluded, is unlikely to harm, and may increase, the availability of copyrighted works. In addition, the Acting Register found that the proposed uses will facilitate criticism, comment, teaching and/or scholarship, and that they are unlikely to substitute for the original work in the marketplace.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Proposed Class 2 would allow circumvention of technological measures protecting motion pictures (including television shows and videos) on DVDs, Blu-ray discs, and via digital transmissions, for disability services professionals at educational institutions to create accessible versions for students with disabilities by adding captions and/or audio description.46 Proponents explained that nearly all educational institutions are subject to disability laws such as the Americans With Disabilities Act (“ADA”), section 504 of the Rehabilitation Act (“Section 504”), and the Individuals With Disabilities Education Act (“IDEA”), which require accommodations for students with disabilities. Proponents maintained that creating accessible versions by adding captions and/or audio description is necessary because inaccessible motion pictures remain prevalent in the video industry, and copyright owners fail to retroactively make motion pictures accessible or grant permission to disability services offices to make those works accessible, even when contacted directly.

Proponents asserted that adding captions and/or audio description to motion pictures for the purpose of making them accessible to students with disabilities constitutes fair use based on the legislative history of section 107. Proponents also argued that viable alternatives to circumvention do not exist, and that not allowing circumvention will negatively affect the market for the copyrighted motion pictures because educational institutions will not use content that they cannot easily convert into an accessible format.

In response, opponents noted that while accessibility is an important issue, the proposed class was too broad because it did not take into account the extent to which DVDs and Blu-ray discs already include closed captions and audio description. They argued that the result of altering a motion picture—such as by adding captioning and/or audio description—is likely a derivative work that involves a creative interpretation of the underlying work. Opponents generally contended that the wide availability of versions with captioning and/or audio description already in the market constitutes a viable alternative to circumvention.

NTIA recommended that the proposed exemption allow “disability services offices and equivalent units” to “circumvent TPMs on audiovisual works in educational settings to add accessibility features” to motion pictures, including “through the provision of closed and open captions and audio description.” In agreement with the Acting Register, NTIA believes that the exemption should apply “regardless of grade level” of the student, and apply to both nonprofit and for-profit educational institutions required to make motion pictures accessible to students under disability laws.

The Acting Register concluded that an exemption should be granted, with a few adjustments to the language outlined in the petition. She recommended that the exemption permit circumvention where the accessible version is created as a necessary accommodation for a student or students with disabilities under a federal or state disability law, such as the ADA, IDEA, or Section 504. In addition, the Acting Register recommended that the exemption apply to for-profit and nonprofit educational institutions, as well as to K-12 institutions, colleges, and universities, because they are subject to such disability laws. The Acting Register also recommended that the exemption allow circumvention only after the educational institution has conducted a reasonable market check and determined that an accessible version is not available, not available at a fair price, or not available in a timely way. The record suggested that these searches are already occurring, and that regardless of whether a decision is made to create an accessible version, outsource the creation of an accessible version, or purchase an accessible version, the educational institution would incur a cost. In this way, the market check requirement seeks to prevent copies being made of works already available in accessible formats, while encouraging the motion picture industry to further expand the availability of accessible versions in the marketplace. Finally, the recommended exemption requires the accessible versions to be provided to students and stored by the educational institution in a manner that reasonably prevents unauthorized further dissemination of the work.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Proposed Class 5 would expand an existing exemption for activity known as “unlocking,” that is, circumvention of access controls on computer programs for the purpose of enabling a wireless device to connect to a different mobile network provider. The Copyright Office has received petitions to permit the unlocking of cellphones since 2006. In 2015, as directed by the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”),48 the Register considered whether to expand the exemption to additional categories of wireless devices. Based on the record in that proceeding, the Register recommended, and the Librarian granted, an exemption covering cellphones, all-purpose tablet computers, portable mobile connectivity devices such as mobile hotspots, and wearable devices such as smartwatches or fitness devices.

The current exemption also is limited to used devices, i.e. those previously activated on a wireless carrier. First adopted in 2010, this limitation was implemented in response to concerns raised by wireless carriers engaged in the business of selling cellphones at substantially discounted prices and recouping that investment through the sale of prepaid wireless service. These companies feared that including new phones in the class could foster illegal trafficking activity, which involves “the bulk purchase of unused handsets that have been offered for sale at subsidized prices . . . and then unlocking and reselling those unlocked handsets for a profit.” 49

In this proceeding, ISRI petitioned for expansions that would (1) remove the enumerated device categories and instead permit circumvention to unlock “any wireless device”; and (2) eliminate the requirement that a wireless device be “used.” As to the limitation on devices, proponents argued that the owner of any connected device should be able to transfer it to the carrier of his or her choice. Proponents warned that the rapid pace of innovation within the Internet of Things industry makes it impossible to predict the specific categories of wireless devices that consumers may need to unlock. Regarding the “used” limitation, proponents argued that illegal trafficking does not implicate copyright interests and that concerns about such activity therefore are outside the proper scope of this rulemaking. Proponents further suggested that, in contrast to 2015, there now exists a need to unlock unused devices, offering examples of corporations acquiring excess devices that are never activated but that they later seek to recycle. The Office received no comments opposing either of these requested expansions.

NTIA recommended granting both aspects of the petition. As it did in 2015, NTIA concluded that “proponents have provided sufficient evidence to demonstrate that circumvention of TPMs on all lawfully acquired wireless devices is a noninfringing use.” In its view, the statutory prohibition “limits consumer choice of wireless network providers, limits recyclers' ability to recycle or resell wireless devices, and limits competition between wireless network providers.” NTIA also concluded that proponents met their burden with respect to unused devices, pointing to evidence that since 2015, “business practices have changed, resulting in a need for bulk and individual unlocking of new wireless devices.” NTIA proposes replacing the term “used” in the exemption with the phrase “lawfully acquired.”

The Acting Register recommended expanding the exemption to unused devices falling within the categories listed in the current exemption. She concluded that unlocking such devices is likely noninfringing under section 117(a) of the Copyright Act for the same reasons noted in the 2015 Recommendation with respect to used devices. She further found that unlocking such devices is likely a fair use, regardless of whether the devices are new or used. With respect to potential cellphone trafficking, the Acting Register found that although such activity limits the network provider's ability to sell devices at a discount, there were no allegations relating to trafficking raised in this proceeding, and it is not clear that the economic harm caused by that activity affects the value of the computer programs allowing devices to connect to wireless networks. She further noted that other causes of action, such as unfair competition or unjust enrichment, may be available to address injury to non-copyright interests. In addition, the Acting Register concluded that absent an exemption, users are likely to be adversely affected in their ability to unlock unused devices of these types. She found that extending the exemption to such devices will increase the availability of the software within them and that the record lacked evidence that doing so would harm the market for copyrighted works.

The Acting Register therefore recommended removal of the provision in the current exemption requiring that a covered device be “used.” Consistent with NTIA's recommendation, she proposed adding language requiring that such a device be “lawfully acquired.” Because the regulations implementing the Unlocking Act already require that circumvention under this exemption be initiated by the “owner” of the relevant device or by a person or service provider at the direction of the owner, the Acting Register views this as a technical, rather than a substantive, change.50

The Acting Register determined, however, that the record was insufficient to support expanding the exemption to additional types of wireless devices. As in 2015, she found the record too sparse to support a finding that unlocking wireless devices of all types is likely to be a fair use. Proponents did provide evidence regarding three specific categories of devices: Home security devices, agricultural equipment, and vehicle GPS trackers. Based on the record, the Acting Register concluded that these devices are similar to those covered by the current exemption in relevant respects, and that unlocking them therefore is likely to be a fair use. But she concluded that proponents failed to establish that they are, or are likely to be, adversely affected by section 1201 in their ability to unlock these types of devices. Proponents did not demonstrate that it would be possible to connect these devices to an alternate wireless network even if an exemption were granted. The Acting Register thus found that they failed to carry their burden to show actual or likely adverse effects resulting from the bar on circumvention. She therefore declined to recommend removal of the exemption's enumerated device categories.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Proposed Class 6 would expand an existing exemption for activity known as “jailbreaking”—that is, the process of gaining access to the operating system of a computing device to install and execute software that could not otherwise be installed or run on that device, or to remove pre-installed software that could not otherwise be uninstalled. An existing exemption permits the jailbreaking of smartphones and portable all-purpose mobile computing devices. In this proceeding, EFF filed a petition seeking to expand the current exemption by: (1) Adding voice assistant devices, such as the Amazon Echo and Google Home, to the categories of devices covered by the exemption; and (2) allowing jailbreaking not only to install, run, or remove software, but also for the purpose of enabling or disabling hardware features of the relevant device.

In proponents' view, the fair use analysis relied upon by the Register in recommending the previous jailbreaking exemptions is equally applicable in the context of voice assistant devices. Moreover, regarding the 1201 statutory factors, proponents argued that a jailbreaking exemption will have either no effect or a positive effect on the availability of copyrighted firmware and application software.

Opponents principally argued that jailbreaking is likely to enable voice assistant devices to access pirated content. Opponents asserted that piracy concerns are greater in the context of voice assistant devices than in that of other devices, as the former are relatively simple devices that do not incorporate the same “hardware and software complexity” that exists in personal computers, and therefore they provide more limited security options. Opponents further suggested that jailbreaking would facilitate the installation of counterfeit apps and apps that enable unauthorized access to copyrighted content. Opponents challenged the contention that jailbreaking is necessary to promote the development of new applications.

NTIA recommended granting the exemption in the form requested by proponents.

It agreed that jailbreaking voice assistant devices is unlikely to harm the market for copyrighted works, noting that there is no evidence of market harm for the devices covered by the current exemption. NTIA rejected opponents' argument about unauthorized access to entertainment content on the ground that it “fail[s] to explain why infringement is more likely on voice assistant platforms than on smartphones, tablets, and other devices already subject to the exemption.” NTIA further concluded that proponents had demonstrated that users in this class are adversely affected by the statutory prohibition.

The Acting Register found that proponents met their burden of showing that jailbreaking voice assistant devices within the meaning of the current exemption is likely to be a fair use. She concluded that the record failed to show that the prior jailbreaking exemptions have harmed the market for firmware in smartphones or all-purpose mobile devices, and that nothing in the record suggests that a different conclusion is warranted for voice assistant devices. Additionally, the Acting Register found the record insufficient to establish that an expanded exemption is likely to harm the market for copyrighted works streamed to voice assistant devices. While acknowledging that piracy of streamed content is a highly significant concern, the evidence was insufficient to conclude that allowing jailbreaking of voice assistant devices created a greater risk of unauthorized access to streaming content than exists with respect to other devices, and suggested that subscription streaming services typically control access to their content with TPMs separate from those protecting the firmware. The Acting Register thus recommended adoption of an exemption authorizing the jailbreaking of voice assistant devices, which must be “designed to take user input primarily by voice.” The recommended exemption excludes video game consoles, set-top boxes, DVD and Blu-Ray players, and similar devices that typically are operated using buttons. To address opponents' serious concerns over the potential use of jailbroken devices as platforms for unauthorized content, the Acting Register recommended including language expressly excluding circumvention undertaken for purpose of accessing such material.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Several organizations petitioned to expand the current exemption allowing for circumvention of access controls controlling the functioning of motorized land vehicles for purposes of diagnosis, repair, or lawful modification of a vehicle function to allow an additional range of activities. The Office synthesized these suggestions into Proposed Class 7. Although the commenters' proposals varied in scope, and there was no singular unified proposed exemption, the Acting Register grouped them into the following four categories:

The Acting Register first considered proposed expansions within the context of motorized land vehicles, and then addressed expansion of the exemption to other types of devices.

Regarding motorized land vehicles, proponents asserted that diagnosis, repair, and lawful modification of vehicle telematics and entertainment systems are fair uses and noninfringing under section 117. Proponents contended that, because these systems are increasingly integrated with functional vehicle firmware, access is necessary to engage in diagnosis, repair, and lawful modification of vehicle functions—activities the Register found to be likely noninfringing in recommending the existing exemption. Proponents sought access to telematics systems in order to obtain diagnostic data for the same purposes. Proponents asserted that vehicle firmware is “effectively useless” outside of the vehicle, with essentially no separate market for the software apart from the vehicles. In addition, proponents suggested users should be permitted to access “storage capacity” in vehicle entertainment systems, and to repair infotainment/entertainment modules.

In response, opponents contended that the proposed activities are not favored under fair use because access to entertainment and telematics systems could allow unauthorized access to expressive content. Opponents asserted that telematics and entertainment firmware have value apart from a vehicle, and may be paid for on a continuing basis separate from the vehicle purchase. Opponents also argued that circumvention of telematics is unnecessary because diagnostic data is still available through the onboard diagnostics port and, further, a nationwide Memorandum of Understanding requires manufacturers to make this data available to vehicle owners and independent repair shops.

Commenters seeking to expand the exemption to allow diagnosis, repair, and modification of other software-enabled devices likewise asserted that these activities are noninfringing under the fair use doctrine and section 117. The Acting Register considered these arguments for those types of devices cognizably reflected in the record, namely home appliances, smartphones, video game consoles, computers and ancillary or peripheral computing devices, and consumables, plus a few examples of specific additional devices.

Opponents maintained that repair of these devices is not a transformative use because it merely causes a device to be used for the same purpose for which it was originally intended. In some cases, opponents also suggested that once the firmware on some devices is accessed, even for repair, it is compromised such that it can no longer prevent piracy; and consequently, these uses diminish the value of and market for the devices and other creative works. Regarding repair of video game consoles specifically, opponents expressed concern that circumvention of TPMs creates the risk of unauthorized access to content and piracy.

Concerning third-party assistance, several proponents requested that the exemption specifically permit third parties, such as repair services, to assist owners in carrying out the authorized activities. Alternatively, proponents suggested removing the current exemption language requiring that circumvention be “undertaken by the authorized owner” of the vehicle. Regarding circumvention tools, proponents asked the Office to recommend language that would allow exemption beneficiaries, including third parties, to not only make, use, and acquire tools, but also to distribute them. Opponents contended that the proposals concerning third-party assistance and circumvention tools would impermissibly expand the exemption to activity that would constitute unlawful trafficking in violation of sections 1201(a)(2) and (b).

NTIA supported expanding the exemption to a “new definable sub-class” of home appliances and mobile handsets (such as cell phones) “when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a device function.” NTIA concluded that these are noninfringing fair uses, in part because “diagnosis is a critical component of repairing a device” and subsequent modification of devices is transformative. With respect to vehicles, NTIA supported expanding the existing exemption to allow “use of telematics data for diagnostic purposes.” It recommended, however, “limiting use to obtaining the diagnostic data from the telematics module for purposes of repair and modification of the vehicle, and not repair or modification to the module itself.” As to vehicle entertainment systems, NTIA “continue[d] to have reservations about the strength of [the] record and the potential for infringement” and did not recommend an expansion to permit access for the proposed uses, including “storage capacity.”

NTIA further recommended removing the current exemption's reference to “the authorized owner of the vehicle”—a change that it characterizes as “extending the current exemption to allow third-party service providers to diagnose, repair and modify software- enabled vehicles on behalf of owners.” But NTIA recommended denying the proposals to “permit third-party commercialization of software repair tools for vehicles in this class,” concluding that such activity is “likely to constitute trafficking.”

The Acting Register recommended expanding the current exemption in areas where there was sufficient record support for such a change, while retaining language to ensure that both the class of works and the permitted uses are appropriately defined. As a result, the Acting Register recommended two separate exemptions, one relating to motorized land vehicles, and one related to the repair and maintenance of additional categories of devices.

Regarding motor vehicles, the recommended exemption removes the requirement that circumvention be “undertaken by the authorized owner” of the vehicle, instead providing that it apply where such items are “lawfully acquired.” This change responds to proponents' concerns that the language of the existing exemption improperly excludes other users with a legitimate interest in engaging in noninfringing diagnosis, repair, or modification activities. The Acting Register expressed no view on whether particular types of third-party assistance may or may not implicate the anti-trafficking provisions. Those provisions, found in section 1201(a)(2) and (b), are unchanged and must be separately analyzed to determine whether third-party assistance would be permissible.

The Acting Register also recommended removing the language excluding access to computer programs designed for the control of telematics or entertainment systems. The Acting Register was persuaded that, due to increasing integration of vehicle computer systems since the 2015 rulemaking, retaining this limitation may impede noninfringing uses that can only be accomplished by incidentally accessing these systems. Nonetheless, the Acting Register credited opponents' concerns about unauthorized access to expressive works through subscription services unrelated to vehicle functioning, and accordingly the recommended exemption specifically excludes access to “programs accessed through a separate subscription service.” While the broadened exemption permits incidental access to a vehicle infotainment system, it provides that such access is allowed only to the extent it is “a necessary step to allow the diagnosis, repair or lawful modification of a vehicle function” and includes the additional requirement that circumvention may not be “accomplished for the purpose of gaining unauthorized access to other copyrighted works.” Because the Acting Register found the record insufficient to support expanding the exemption to permit diagnosis, repair, or lawful modification of the telematics and infotainment systems themselves, the regulatory language does not extend to those activities.

In addition, the Acting Register recommended a new exemption allowing for the circumvention of TPMs restricting access to firmware that controls smartphones and home appliances and home systems for the purposes of diagnosis, maintenance, or repair. In doing so, the Acting Register adopted the definitions of “maintenance” and “repair” in section 117(d). Here again, the recommended text includes the condition that circumvention not be “accomplished for the purpose of gaining unauthorized access to other copyrighted works.” The Acting Register did not recommend extending this exemption to circumvention for purposes of modifying a device function, concluding that “modification” was not defined with sufficient precision to conclude as a general category it is likely to be noninfringing.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemptions:

Proposed Class 9 seeks to address concerns that TPMs applied to computer programs can interfere with legitimate preservation activities. The Software Preservation Network (“SPN”) and the LCA filed a petition that would allow “libraries, archives, museums, and other cultural heritage institutions” to circumvent TPMs on “lawfully acquired software for the purposes of preserving software and software-dependent materials.” SPN and LCA explained that the proposed exemption is intended to enable cultural heritage institutions to preserve both TPM-protected computer programs, as well as “dependent” materials—“writings, calculations, software programs, etc.” stored in digital formats that are inaccessible without running the underlying program. Although proposed Class 9 constitutes a new exemption, proponents noted that the Register recommended, and the Librarian granted, exemptions for software preservation in 2003 and 2006, which allowed circumvention of access controls on computer programs and video games distributed in formats that have become obsolete and that require the original media or hardware as a condition of access. Proponents advanced three bases for finding their proposed activities to be noninfringing: (1) The fair use doctrine, (2) the section 108(c) exception for library and archival replacement copies, and (3) the section 117(a) exception for archival copies of computer programs.

Opponents contended that the proposal is overbroad because (1) the exemption would improperly allow circumvention for activities beyond those provided for in the section 108 exceptions for libraries and archives; (2) the term “computer program-dependent materials” might be read to sweep in any category of copyrightable work; and (3) the term “other cultural heritage institutions” within the class of beneficiaries is undefined. Although opponents did not directly contest proponents' fair use arguments, they did assert that section 117(a)(2) does not protect proponents' activities.

NTIA supported adopting the proposed exemption. In its view, the class was appropriately defined because it was limited to “computer programs, to preservation uses, and to preservation-oriented institutional users.” It agreed with proponents that the exemption should expressly refer to preservation of “computer program-dependent materials,” concluding that “a user would not be able to access those materials without preserving the software protected by a TPM.” It also agreed that the exemption should include video games, noting that proponents provided specific examples of games that may not be covered by the current preservation exemption. In addition, it found that there were no reasonable alternatives to circumvention, as the use of software with backwards compatibility “is inadequate and can distort the original work.”

The Acting Register recommended granting an exemption that incorporates most of the substance of proponents' request, with certain changes to address opponents' concerns. First, the recommended language limits the eligible users to libraries, archives, and museums, as defined according to the criteria proposed in the Office's recent Section 108 Discussion Document.54 The Acting Register declined to recommend including “other cultural heritage institutions” within the class of beneficiaries, finding that term to be undefined and potentially far-reaching. In addition, the Acting Register recommended that the exemption incorporate proponents' suggestion that the class be defined as computer programs “that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace.” The Acting Register also recommended that in lieu of including the phrase “computer program-dependent materials” as a defined term, the recommended exemption simply provide that circumvention is permitted for the purpose of “lawful preservation . . . of digital materials dependent upon a computer program as a condition of access.” Finally, in response to concerns over having video game preservation governed by two separate exemptions, the Acting Register recommended that the portion of this class pertaining to video games be codified in the existing video game preservation exemption. Thus, the recommended exemption for Class 9 will cover computer programs other than video games, while an addition to the prior exemption for video games will provide for preservation of the video games addressed by this class (i.e., those that do not require an external server for gameplay). Preservation of server-based games will continue to be governed by the recommended exemption for Class 8.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Class 8 proponents sought expansion of the provisions in the existing exemption that allows eligible institutions to circumvent access controls to preserve video games for which external server support has been discontinued. As explained in the 2015 rulemaking, some video games require a network connection to a remote server operated by the game's developer before the video game can be accessed and played. When the developer takes such a server offline, a game can be rendered unplayable or limited to certain functions, such as single-player play or multiplayer play on a local network. The current exemption allows an eligible library, archives, or museum to circumvent this type of authentication mechanism to preserve lawfully acquired games in “complete” form, i.e., those that can be played without accessing or reproducing copyrightable content stored or previously stored on an external computer server. The exemption requires that such games not be distributed or made available outside of the physical premises of the eligible institution.

The Museum of Art and Digital Entertainment (“MADE”) filed a petition seeking to expand the exemption to allow for circumvention of access controls on video games that need to access creative content stored on a remote server, which MADE refers to as “online” games. MADE contended that the current exemption, while helpful, does not allow it to preserve the growing number of online video games for future generations to study. Proponents explained that libraries, archives, and museums cannot engage in certain preservation activities involving online games without either copying the game's server code or reconstructing that server's functionality, which would also require an exemption to circumvent TPMs on these works. MADE also sought to broaden the class of users of the exemption to include volunteer “affiliate archivists,” who wish to circumvent access controls off-premises, but under the supervision of preservation entities.

Opponents objected to the proposed expansions, arguing that proponents' intended use of the video games is not a true preservation use. Instead, opponents contended that proponents wish to engage in recreational play that could function as a market substitute. In addition, the Entertainment Software Association expressed concern that the server copy proponents wish to recreate is an unpublished work that has never been distributed to the public. Overall, opponents contend that the proposed uses are infringing. Opponents also objected to the use of affiliate archivists, contending that there is a heightened risk of market harm if the public can circumvent access controls on video games in their own homes.

NTIA supported the adoption of an expanded exemption, but one narrower than that requested by proponents. It proposed an expansion to allow preservation “where the user uses the server component—while still not providing any substantial expressive content—for administrative tasks beyond authentication, including command and control functions such as tracking player progress, facilitating communications between players, or storing high scores.” To accommodate these uses, it recommended regulatory language that would apply in situations where “all or nearly all of the audiovisual content and gameplay mechanics reside on the player or institution's lawfully acquired local copy of the game.” NTIA did not, however, support adding an “affiliate archivist” user class, concluding that adding such a provision risks “introducing confusing language or suggesting that any such preservationists may not need to be answerable to the institutions for which they are volunteering.”

The Acting Register found that the record supported granting an expansion in the relatively discrete circumstances where a preservation institution legally possesses a copy of a video game's server code and the game's local code. She concluded that in such circumstances, the preservation activities described by proponents are likely to be fair uses. She further found that proponents demonstrated that such uses would be adversely affected by the statutory prohibition absent an exemption. The record indicated that an exemption would enable future scholarship by enabling researchers to experience games as they were originally played and thereby better understand their design or construction. The Acting Register additionally found such activity unlikely to harm the market for video games.

The Acting Register did not, however, recommend an exemption to allow for instances where the preservation institution lacks lawful possession of the server software. She found the record insufficient to support a finding that the recreation of video game server software as described by proponents is likely to be a fair use. A number of scenarios described by proponents do not involve preserving server software that is already in an institution's collections, but instead appear to involve something more akin to reconstructing the remote server. She found that this activity distinguishes proponents' request from the preservation activity at issue in the case law upon which they relied. Moreover, she noted, the reconstruction of a work implicates copyright owners' exclusive right to prepare derivative works.

Additionally, the Acting Register concluded that the record did not support the addition of an “affiliate archivist” user class to the exemption, finding such activity unlikely to constitute fair use. She noted that both the proposed exemption language and the proponents' institutions' practices seemed to lack appropriate protective guidelines to govern such volunteers' use of copyrighted materials.

In light of the foregoing, the Acting Register recommended an exemption for “server-dependent games,” defined as video games that can be played by users who lawfully possess both a copy of a game intended for a personal computer or video game console and a copy of the game's code that is stored or was previously stored on an external computer server. The Acting Register continues to recommend an exemption for “complete games,” but proposed revising the exemption language to reflect that the exemption for “complete games” applies to both gamers and preservation uses, but the exemption for “server dependent games” applies only to preservation uses. In addition, for the reasons explained above in the discussion of Proposed Class 9, the Acting Register recommended adding a paragraph to the exemption in this class to accommodate preservation of non-server-based video games.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

The Office received multiple petitions to expand the existing exemption allowing circumvention for the purpose of conducting good-faith security research on certain types of software-enabled devices and machines. Proponents argued that the current language contains limitations that unnecessarily restrict its scope, as well as ambiguities that chill legitimate research. These include: (1) A provision limiting the exemption to specified categories of devices (“Device Limitation”); (2) a requirement that a device be “lawfully acquired” (“Lawfully Acquired Limitation”); (3) a requirement that circumvention be “solely” for the purpose of good-faith security research, and the definition of such research as accessing a program “solely” for purposes of good-faith testing, investigation, and/or correction (“Access Limitation”); (4) a requirement that the research be “carried out in a controlled environment designed to avoid any harm to individuals or the public” (“Controlled Environment Limitation”); (5) a requirement that “the information derived from the activity [be] used primarily to promote the security or safety of the class of devices or machines . . . or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement” (“Use Limitation”); and (6) a requirement that the circumvention “not violate any applicable law” (“Other Laws Limitation”). Proponents maintained that the proposed activity is noninfringing on one or both grounds relied upon by the Register in 2015—section 117 and fair use.

Opponents objected to removal of each of these provisions, arguing that the current language appropriately balances the interests of security researchers, copyright owners, and the general public. In their view, the adverse effects asserted by proponents are unsupported by the record and are based on unreasonable readings of the relevant text. Opponents also variously argued that removing the limitations would render the class impermissibly broad, give rise to infringing uses, and jeopardize public safety and national security.

Following the close of the public comment period and the completion of the public hearings, the Office received a letter concerning this class from CCIPS. The CCIPS letter stated that “[m]any of the changes sought in the petition appear likely to promote productive cybersecurity research, and CCIPS supports them,” subject to certain limitations. With respect to the Device Limitation, CCIPS advised that it would support eliminating the language confining the exemption to devices “primarily designed for use by individual consumers.” It recommended clarification of the Controlled Environment Limitation and said that it “would not object to its removal.” As to the Lawfully Acquired Limitation, CCIPS stated concluded that the current language is preferable to conditioning the exemption on ownership of a particular copy of software. CCIPS also addressed the Other Laws Limitation, stating that it would not object to removal of the phrase “any applicable law” were it standing alone, but recommending retaining the express reference to the Computer Fraud and Abuse Act of 1986.

NTIA recommended granting the proposed expansion and proposed the same regulatory text it offered in 2015. That language would allow circumvention “in order to conduct good faith security research” on computer programs, “regardless of the device on which they are run.” NTIA further recommended that the Other Laws Limitation be replaced with a statement that the exemption “does not obviate the need to comply with all other applicable laws and regulations.” In addition, NTIA recommended removal of the Controlled Environment, Access, and Use Limitations, largely agreeing with proponents that those provisions may chill legitimate research.

The Acting Register found that good-faith security research involving devices beyond those covered by the current exemption is likely to be a fair use. As the Register found in 2015, the Acting Register concluded that good-faith security research promotes several of the activities identified in section 107 as examples of favored purposes, including criticism, comment, teaching, scholarship, and research. In contrast to 2015, the current rulemaking record contained many additional examples of activities security researchers wished to engage in but for the Device Limitation. But the Acting Register did not find that section 117 provides an additional basis for finding such activity to be noninfringing. She found the record insufficient to support the conclusion that security researchers as a general matter are likely to own the copies of the device software, as is required under section 117.

Ultimately, the Acting Register recommended that the exemption remove the Device Limitation, and include a provision allowing circumvention to be undertaken on a “computer, computer system, or computer network on which the computer program operates.” The latter provision is intended to address situations in which a researcher seeks access to a structure, such as a building automation system, that cannot be “acquired” in the sense of obtaining physical possession of it, in contrast to instances where the researcher can lawfully acquire a device or machine. The exemption requires that circumvention in these circumstances be undertaken “with the authorization of the owner or operator of such computer, computer system, or computer network.” In addition, to address proponents' concerns over potential ambiguity in the Controlled Environment Limitation, the exemption removes the term “controlled,” so that it simply would require the research to be “carried out in an environment designed to avoid any harm to individuals or the public.” The Acting Register did not recommend removal of the other limitations challenged by proponents, finding that proponents had failed to demonstrate that those provisions are causing, or are likely to cause, any adverse effect on noninfringing security research.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

3D printing—also known as “additive” manufacturing—is a technology that translates digital files into physical objects by adding successive layers of material. Some 3D printer manufacturers use TPMs to limit the types of material—or “feedstock”—that can be used in their 3D printers to manufacturer-approved feedstock.

Proponents sought to expand a current exemption that permits the circumvention of access controls on computer programs in 3D printers to enable the use of non- manufacturer-approved feedstock. Michael Weinberg filed a petition to eliminate the following language at the end of the exemption: “provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.”

Proponents put forth two arguments as to why the Acting Register should broaden the exemption by dropping this language: (1) The clause creates ambiguity such that the exemption itself cannot be applied or used in the majority of circumstances, and (2) the concerns that the clause seeks to address are more suitably addressed by other agencies. Stratasys, an opponent to the exemption, contended that this expanded range of activities is less likely to constitute fair use and should remain prohibited for reasons of public policy.

NTIA supported renewing the exemption as well as expanding the exemption by removing the relevant limiting language. NTIA's proposed language differed from the current regulatory language in additional ways. For example, NTIA proposed incorporating the restriction that “circumvention is undertaken for the purpose of enabling interoperability of feedstock or filament with the device.” NTIA, however, did not provide specific support for altering the regulatory text beyond removing the qualifying language.

The 2015 rulemaking identified fair use as the noninfringing basis for this exemption, and the proposed expansion was evaluated on the same grounds. Because the record indicated that the state of the 3D printing market appears to be substantially the same as in 2015, and case law has not significantly altered the relevant fair use issues, the Acting Register concluded that the copying or modifying of printer software to accept non-manufacturer-approved feedstock is likely to be a fair use.

Because the first four statutory factors do not fit neatly onto this situation, the Acting Register focused most of her analysis on the fifth factor to consider these related concerns. The Acting Register determined that the expanded record now shows that there are situations in which an individual may be complying with relevant law or regulations but still be at risk of violating section 1201 due to the exemption's qualifying language (e.g., individual sellers of homemade wares). The Acting Register concluded that the record established that the qualifying language in the existing exemption may be inhibiting otherwise beneficial or innovative uses of alternate feedstock, which is contrary to the intention of that exemption—and moreover, that there are safeguards outside of the current exemption addressing health and safety concerns associated with 3D printing.

Accordingly, the Acting Register recommends that the Librarian adopt the following exemption:

Based upon the record in this proceeding, the Acting Register of Copyrights recommended that the Librarian determine that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1):

Proposed Class 3 would allow circumvention of technical measures protecting motion pictures and other audiovisual works to engage in “space-shifting.” As the 2015 rulemaking described, the Copyright Office's understanding is that space-shifting occurs when a work is transferred from one storage medium to another, such as from a DVD to a computer hard drive. Chris De Pretis petitioned for an exemption to allow circumvention by individuals to create a personal digital backup of content for private use, a proposal similar to those sought and rejected in previous rulemakings. The Office also received a petition from OmniQ, a corporate entity, proposing an exemption to allow so-called “non-reproductive” space-shifting, including for commercial uses. A third proponent, SolaByte Corporation, filed a one-page comment in support of OmniQ and testified at the public hearing.

OmniQ primarily argued that its proposed technology did not result in a reproduction of a copyrighted work, and thus fair use analysis was unnecessary. Proponents also argued that the overall availability of works for public use is shrinking because the hardware and software needed to play disc media are becoming less available in the marketplace. They argued that online content distribution platforms, taken in the aggregate, only offer a small and always-changing fraction of the titles historically available on DVD and Blu-ray disc, and that the costs of these services are unacceptable, especially when users already own the content in disc form.

In response, opponents argued that OmniQ's technology would reproduce works because they would constitute entirely new things (i.e., a copy). Opponents also contended that recent case law developments further demonstrate that space-shifting is not a fair use. In addition, opponents provided evidence of alternatives to circumvention in the form of a substantial number of online distribution platforms for accessing copyrighted audiovisual works, the vast majority of which they claim exist as viable business models only because of the ability to employ TPMs to protect the content from unauthorized uses.

Unlike in prior rulemakings where NTIA “supported limited versions of a noncommercial space-shifting exemption . . . mainly in the interest of consumer protection,” NTIA did not support an exemption for this class in the present rulemaking. NTIA acknowledged that the “legal status of the concept of space-shifting remains a matter of dispute among copyright experts” and that it “has not been explicitly established as non-infringing on the basis of the fair use doctrine.” NTIA added that “proponents ha[d] not established in this proceeding that their specific proposal would be non-infringing.” Moreover, NTIA recognized that “[p]roponents failed to demonstrate that the `prevalence of [encrypted digital content] is diminishing the ability of individuals to use these works in ways that are otherwise lawful.' ”

The Acting Register found that under current law, OmniQ's self-described process is likely to result in an unauthorized reproduction in violation of section 106(1), and that, as in 2015, the case law maintains that transferring digital files from one location to another implicates the reproduction right and is therefore infringing, even where the original copy is contemporaneously or subsequently deleted. With regard to personal space-shifting, in light of the lack of record and in the absence of clear supporting precedent, the Acting Register found no basis to depart from the fair use analysis and ultimate conclusion reached in the 2015 proceeding, where the Register was unable to determine that the proposed uses were noninfringing. She noted that the commercial nature and potential market effects of the OmniQ and SolaByte business models complicate the fair use analysis, and not in their favor. For example, the record included substantial evidence of extensive markets for internet-based distribution services for copyrighted audiovisual works, including digital rentals, online streaming and over-the-top services, on-demand cable and satellite television offerings, disc-to-digital services, and digital locker services, which could be negatively impacted by the proposed exemption. These markets also served as sufficient alternatives to circumvention, as they demonstrated a wide availability of easily accessible copyrighted works that could potentially be negatively affected by an exemption that allowed unauthorized copies to compete with these authorized access models. Based on the record in this proceeding, the Acting Register did not find that the statutory factors supported the proposed exemption.

Proposed Class 4 would allow circumvention “to make noninfringing uses of audiovisual works that are subjected to High-bandwidth Digital Content Protection (HDCP).” Petitioner Andrew “bunnie” Huang described HDCP as “a protocol used to restrict content sent over High-Definition Multimedia Interface (HDMI) cables,” or “a standard for video transport from one device to another.” He explained that many devices that play video discs and video game software encode their output using HDCP, and that this interferes with capturing the output for subsequent noninfringing uses.

Multiple participants opposed this exemption, arguing that section 1201 does not permit such a broad exemption, noting that HDCP is the industry standard for protecting audiovisual works in transit to a display device and that past Registers have rejected exemptions for “all noninfringing uses.” They characterized Huang's discussion of the proposed uses as “cursory,” and suggested it was not possible to evaluate the proposed uses under the exemption without further detail. Opponents also suggested that multiple proposed uses would actually be infringing, and highlighted what they see as a significant online infringement risk if the exemption permitted in-the-clear copies of entire works. In addition, opponents set forth a large number of concrete examples of potential alternatives to circumvention that the petitioner failed to meaningfully challenge. Finally, they asserted that “HDCP is a critically important component of the secure ecosystem through which content is delivered for home entertainment” and noted that section 1201 was intended to encourage copyright owners to make their works available digitally and foster new means of distribution by providing reasonable assurances against fears of piracy.

NTIA recommended against this exemption, stating that “[p]roponents did not provide sufficient evidence on the record about the alleged non-infringing uses,” and that “[w]hile there are several examples of potential non-infringing uses that could serve as the basis for an exemption, the proponents [had] not developed the argument in the record . . . .” NTIA also observed that the proposed exemption “appear[ed] to be for the HDCP TPM itself, which is not appropriate for this rulemaking process.”

The Acting Register also recommended against the exemption, largely agreeing with many of the bases advanced by opponents. Specifically, the Acting Register concluded that the proposed exemption was overly broad, as HDCP is the industry standard for protecting audiovisual works in transit to a display device, and thus limiting the proposal this way did not very meaningfully focus the scope beyond the starting point of all audiovisual works. The Acting Register also determined that some of the proposed uses may potentially be fair use depending upon factual circumstances, but that the record lacked the requisite detail and legal support for the Acting Register to conclude that the proposed uses are or are not likely to be noninfringing. Based upon the record, the Acting Register could not conclude that the overall availability for use of copyrighted works has been diminished or is likely to be in the next three years absent an exemption, noting that the proposed activities may well have a negative effect on the market for or value of copyrighted works. Finally, she concluded that the request was an individual case of de minimis impact, as it was largely made upon a single request of an individual who resides in Singapore for which there appeared to be myriad alternative ways to achieve the proposed uses.

Proposed Class 11 would permit circumvention of access controls on electronic systems used in aircraft, i.e., avionics, to enable access to aircraft flight, operations, maintenance and security bulk data collected by third parties upon authorization of the aircraft owner or operator in the course of complying with Federal Aviation Administration (“FAA”) standards, rules, and regulations. Due to reliance upon these electronic systems, proponents asserted that aircraft “operators have faced a . . . rise in the complexity and scope of work needed to keep their fleet secure and operating efficiently,” and that the FAA “has mandated the review of the data, information, logs[,] and other information [by aircraft owners or operators] as a means to ensure safety, security[,] and regulatory compliance.”

In NTIA's view, “[p]roponents failed to demonstrate that the proposed class includes copyrighted works protected by TPMs.” Moreover, NTIA continued, “Air Informatics failed to identify clearly the proposed users of the exemption,” suggesting that “the prohibition on circumvention does not adversely affect and is not likely to adversely affect users.” Lastly, NTIA maintained that “[r]easonable alternatives to circumvention seem to exist,” noting that “the two relevant parties can come to an agreement for access to and use of the data.”

The Acting Register found that the record suggested that the data collected by aircrafts at issue consist of facts, which are not copyrightable. According to the petitioner, the information represents objective details about aircraft, such as flight operations and fuel economy. As Public Knowledge explained, the data inputs and outputs “are not classifiable as a `work' protected under Title 17” and such “access does not implicate any colorable copyright concerns.” The Acting Register also concluded that the collected information would not qualify as a copyrightable compilation, because it is formatted and compiled in accordance with an industry-wide standard. The Acting Register accordingly concluded that proponents have not alleged that the data or data compilations they are seeking to access are copyrightable, and thus subject to the prohibition on circumvention. Although petitioner raised some concerns regarding attempts by airplane manufacturers to control the aftermarket for the data in security research and analytics, the Acting Register determined that it was not clear that section 1201 is facilitating those actions, and noted that the security research exemption may potentially be utilized to cover such activities, to the extent applicable.

Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Acting Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.

Having duly considered and accepted the Recommendation of the Acting Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of copyrighted works that shall for a three-year period be subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).

For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:

I. Does this action apply to me?

A list of potentially affected entities is provided in the Federal Register of August 27, 2018 (83 FR 43538) (FRL-9982-24). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

In the Federal Register of August 27, 2018 (83 FR 43538) (FRL-9982-24), EPA issued direct final SNURs for 19 chemical substances that are identified in that document. Because the Agency received adverse comments and a request to extend the comment period regarding the SNURs identified in the document, EPA is withdrawing the direct final SNURS issued for these 19 chemical substances, which were the subject of PMNs. In addition to the Direct Final SNURs, elsewhere in the same issue of the Federal Register of August 27, 2018 (83 FR 43538) (FRL-9982-24), EPA issued proposed SNURs covering these 19 chemical substances. EPA will address all adverse public comments in a subsequent final rule, based on the proposed rule.

EPA determined that this document is not subject to the 30-day delay of effective date generally required by the Administrative Procedure Act (APA) (5 U.S.C. 553(d)) because of the time limitations for publication in the Federal Register. This document must publish on or before the effective date of the direct final rule containing the direct final SNURs being withdrawn.

This action withdraws regulatory requirements that have not gone into effect and which contain no new or amended requirements and reopens a comment period. As such, the Agency has determined that this action will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rules were discussed in the August 27, 2018 Federal Register (83 FR 43538). Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit III.

I. Does this action apply to me?

A list of potentially affected entities is provided in the Federal Register of August 27, 2018 (83 FR 43527) (FRL-9982-77). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

In the Federal Register of August 27, 2018 (83 FR 43527) (FRL-9982-77), EPA issued direct final SNURs for 10 chemical substances that are identified in that document. Because the Agency received adverse comments and a request to extend the comment period regarding the SNURs identified in the document, EPA is withdrawing the direct final SNURS issued for these 10 chemical substances, which were the subject of PMNs. In addition to the Direct Final SNURs, elsewhere in the same issue of the Federal Register of August 27, 2018 (83 FR 43527) (FRL-9982-77), EPA issued proposed SNURs covering these 10 chemical substances. EPA will address all adverse public comments in a subsequent final rule, based on the proposed rule.

EPA determined that this document is not subject to the 30-day delay of effective date generally required by the Administrative Procedure Act (APA) (5 U.S.C. 553(d)) because of the time limitations for publication in the Federal Register. This document must publish on or before the effective date of the direct final rule containing the direct final SNURs being withdrawn.

This action withdraws regulatory requirements that have not gone into effect and which contain no new or amended requirements and reopens a comment period. As such, the Agency has determined that this action will not have any adverse impacts, economic or otherwise. The statutory and Executive Order review requirements applicable to the direct final rules were discussed in the August 27, 2018 Federal Register (83 FR 43527). Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements.

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). Section 808 of the CRA allows the issuing agency to make a rule effective sooner than otherwise provided by CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. As required by 5 U.S.C. 808(2), this determination is supported by a brief statement in Unit III.

Each state has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each state must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52 “Approval and Promulgation of Implementation Plans,” Title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the state regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52, but is “incorporated by reference.” This means that EPA has approved a given state regulation or specified changes to the given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in a given SIP. The information provided allows EPA and the public to monitor the extent to which a state implements a SIP to attain and maintain the NAAQS and to take enforcement action if necessary.

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the state. Therefore, EPA from time to time must take action on proposed revisions containing new and/or revised state regulations. A submission from a state can revise one or more rules in their entirety or portions of rules, even change a single word. The state indicates the changes in the submission (such as, by using redline/strikethrough) and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each state SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally-approved regulations and source specific permits submitted by each state agency. These SIP Compilations are updated primarily on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular state. EPA applied the 1997 revised procedures to: North Carolina on May 20, 1999 (64 FR 27465); Forsyth County on August 9, 2002 (67 FR 51763); and Mecklenburg County on October 22, 2002 (67 FR 64999).

This action represents EPA's publication of the North Carolina, Forsyth County, Mecklenburg County and Western North Carolina SIP Compilation update, appearing in 40 CFR part 52: specifically, the materials in paragraph (c) at 40 CFR 52.1770. This notice changes the format of paragraph (c) by: (1) Converting Tables 1, 2 and 3 to Volumes (1), (2) and (3); (2) adding Volume 4 “Western North Carolina”; (3) correcting typographical errors and; (4) provides notice of the following corrections to Volumes (1), (2) and (3) (previously Tables 1, 2 and 3) of paragraph (c) in section 52.1770, as described below:

A. Under the “State Citation” column, “Sect” is changed to “Section” before all rules in table.

B. Under the “State effective date” and “EPA approval date” columns: The 2-digit year is changed to reflect a 4-digit year (for consistency), any leading zeroes have been removed for the month, and numerous Federal Register citations are corrected to reflect the first page of the preamble as opposed to the regulatory text page.

C. The last column is changed to read “Explanation” in all Volumes for consistency.

A. Section .0101 and Section .0103: The State effective date was revised to read “12/1/2005”.

B. Section .0520 and Section .0929: The entries were removed from the table because EPA previously approved removal of these provisions from the SIP. See 62 FR 41277 (August 1, 1997).

C. Section .0530: The EPA approval date was added to read “9/14/2016, 81 FR 63107.”

D. Section .0903: The Title/subject was revised to read “Recordkeeping: Reporting: Monitoring”.

E. Section .0907, Section .0910, and Section .0911: These entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 64 FR 55831 (October 15, 1999).

F. Section .0909: The Title/subject was revised to read “Compliance Schedules for Sources in Ozone Nonattainment and Maintenance Areas.”

G. Section .0913, Section .0914, Section .0915, Section .0916, Section .0917, Section .0920, Section .0921, Section .0934, Section .0936, Section .0939, Section .0940, Section .0941, Section .0942, Section .1416, Section .1417, Section .1419, Section .1420, Section .1421, and Section .1422: These entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 78 FR 27065 (May 9, 2013).

H. Section .0938: The entry was removed from the table because EPA previously approved removal of this provision from the SIP. 64 FR 61213 (November 10, 1999).

I. Section .0953 and Section .0954: The entries were removed from the table because EPA previously approved removal of these provisions from the SIP. 78 FR 58184 (September 23, 2013).

J. Section .0959: The entry was removed because this provision was not incorporated into the SIP. See 68 FR 66350 (November 26, 2003).

K. Section .0963: The Title/subject was revised to read “Fiberglass Boat Manufacturing Materials”.

L. Section .0966: The Title/subject was revised to read “Paper, Film and Foil Coatings.”

M. Section .1004: The entry was removed from the table because EPA previously approved removal of this provision from the SIP. See 80 FR 6455 (February 5, 2015).

N. Section .1409: The Title/subject was revised to read “Stationary Internal Combustion Engines.”

O. Section .1418: The Title/subject was revised to read “New Electric Generating Units, Large Boilers, and Large I/C Engines.”

P. Section .1903: The Title/subject was revised to read “Open Burning Without An Air Quality Permit.”

Q. Section .1901, Section .1902, and Section .1903: The State effective date was revised to read “7/1/2007.”

R. Section .2001: The State effective date was revised to read “12/1/2005”.

S. Section .2602: The Title/subject was revised to read “General Provisions on Test Methods and Procedures.”

T. Section .2614: The Title/subject was revised to read “Determination of VOC Emission Control System Efficiency.”

A. Section .0103, Section .0105, Section .0304, and Section .0305: The State effective date was revised to read “12/1/2005.”

B. Section .0806: The State effective date was revised to read “6/1/2004.”

A. Section .0103: The Title/subject was revised to read “Copies of Referenced Federal Regulations”.

B. Section .0504: The word “Repealed” was removed from the Explanation column (previously Comment column) because the section was approved into the SIP on September 16, 2003 (68 FR 54163).

C. Section .0507: The FR citation was corrected to read “2/17/2000, 65 FR 8053.”

D. Section .0512: The State effective date was revised to read “7/28/1997” and the EPA approval date was revised to read “12/31/1998, 63 FR 72190”.

E. Section .0516: The State effective date was revised to read “11/29/1995” and the EPA approval date was revised to read “5/23/1996, 61 FR 25789”.

F. Section .0517: The State effective date was revised to read “6/14/1990” and the EPA approval date was revised to read “5/2/1991, 56 FR 20140”.

G. Section .0542: A duplicate entry in Section .0500 Emission Control Standards for Section .0542 was removed, and the word “Repealed” was removed from the Explanation column (previously Comment column) because EPA previously approved the section into the SIP.

H. Section .0914: The Title/subject was revised to read “Determination of VOC Emission Control System Efficiency”.

I. Section .0944: The Title/subject was revised to read “Manufacture of Polyethylene, Polypropylene and Polystyrene”.

J. Section .0947: The Title/subject was revised to read “Manufacture of Synthesized Pharmaceutical Products”.

K. Section .0957: The State effective date was revised to read “11/29/1995” and the EPA approval date was revised to read “5/23/1996, 61 FR 25789”.

A. Section .0311: The Title/subject was revised to read “Permitting of Facilities at Multiple Temporary Sites”.

B. Section .0803: The State effective date was revised to read “7/30/1999” and the EPA approval date was revised to read “10/22/2002, 75 FR 64994”.

A. Section 1.5231: The Title/subject was revised to read “Air Quality Fees”.

A. Section 2.0610: The Title/subject was revised to read “Federal Monitoring Requirements”.

B. Section 2.0925: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

C. Section 2.0926: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

D. Section 2.0928: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

E. Section 2.0929: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

F. Section 2.0930: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

G. Section 2.0934: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

H. Section 2.0943: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

I. Section 2.0944: The State effective date was revised to read “3/1/1991” and the EPA approval date was revised to read “6/23/1994, 59 FR 32362”.

J. Section 2.0951: An entry was added for Section 2.0951 “Miscellaneous Volatile Organic Compound Emissions”, which was approved on 10/22/2002 (67 FR 64999).

K. Section 2.0958: An entry was added for Section 2.0958 “Work Practices for Sources of Volatile Organic Compounds”, which was approved on 10/22/2002 (67 FR 64999).

EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved state programs and corrects typographical errors appearing in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and typographical corrections) only reflect existing law. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the updated North Carolina SIP Compilation and notice of typographical corrections to the North Carolina “Identification of Plan” portion of the Federal Register. Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP compilation and the CFR “Identification of plan” section (which includes table entry corrections).

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of previously EPA-approved regulations promulgated by North Carolina, Forsyth County, Mecklenburg County, and Western North Carolina, and federally effective prior to October 1, 2017. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this notification of administrative change does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides 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. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. 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 5 U.S.C. 804(2).

EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the North Carolina SIP compilations previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) is not available.

40 CFR part 52 is amended as follows: