Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3863 

visitor experience. Importantly, in 2003, 

NARA completed a two year renovation 

of the Rotunda and constructed 

additional exhibit space at the same 

time. Since the rededication of the 

Rotunda six years ago, visitors are no 

longer forced to shuffle past the 

documents at a regimented pace as the 

commenter states. Rather, visitors are 

permitted to enter the Rotunda in small 

groups to view the documents in any 

order they wish for as long as they wish. 

This system permits individuals and 

families to study the documents and 

discuss their meaning while also 

permitting visitors with limited time to 

satisfy their curiosity with a quick 

glance. 

For the past five years, the staff has 

monitored the NAE’s informal visitor 

comment log as well as letters received 

from visitors requesting and demanding 

that NARA eliminate all photography. 

Comments such as these vastly 

outnumber those requesting permission 

for flash photography usage. The 

requests from visitors to eliminate 

photography usually ask us to do so for 

three reasons: the ultraviolet light is 

detrimental to the documents; visitors 

using cameras do not bother to look at 

or read the documents; and those taking 

photographs keep other visitors from 

viewing the exhibits as they use 

excessive amounts of time lining up and 

blocking people from intruding into 

their camera shot. 

The National Archives serves roughly 

a million visitors every year. During 

peak tourist season, the NAE can 

accommodate up to 4,500 each day. 

Over the past five years, the agency has 

monitored visitor traffic flow in the 

Rotunda of the NAE on a continual basis 

in an effort to improve the visitor 

experience. It has long been noted that 

visitors with cameras disrupt and 

dramatically slow down the flow of 

visitors and frustrate many of the eager 

visitors who are forced to wait to view 

our country’s founding documents. By 

eliminating all filming, photographing 

and videotaping by the public in the 

exhibit areas, NARA expects to 

eliminate delays, and provide its 

visitors with a more rewarding 

experience. For those visitors who wish 

to take home an image of the 

documents, the National Archives Shop 

has facsimiles of various sizes and price 

ranges available for purchase. NARA 

also provides visitors with the ability to 

access and print digital images of the 

documents from the Boeing Learning 

Center free of charge. Finally, NARA has 

posted high quality images of 

documents on display at the NAE on its 

Web site http://www.archives.gov; 

visitors can download or print these 

images from their personal computers at 

no cost. 

One final comment dealing with 

enforcement of the proposed rule 

suggested that any visitor with a 

photographic device on their person 

would be turned away and that 

overzealous security guards might 

subject visitors to harassment or bodily 

harm. NARA can assure this commenter 

that those hypothetical behaviors and 

policies will not happen. Visitors with 

photographic devices will be allowed to 

enter the building with their cameras, 

cell phones, and other photographic 

equipment. However, they will be met 

by appropriate signage and security 

personnel throughout the NAE to 

explain the ‘‘no photography’’ rule. In 

the event that a visitor makes the 

mistake of displaying or attempting to 

use a photographic device, they would 

first be warned that such behavior is not 

allowed. If, after they have received a 

warning, they continue to ignore the ‘‘no 

photography’’ rule they will be politely 

escorted from the building. 

List of Subjects in 36 CFR Part 1280 

Archives and records, Federal 

buildings and facilities. 

■ For the reasons set forth in the 

preamble, NARA amends part 1280 of 

title 36, Code of Federal Regulations, as 

follows: 

PART 1280—USE OF NARA 

FACILITIES 

■ 1. The authority citation for part 1280 

continues to read as follows: 

Authority: 44 U.S.C. 2102 notes, 2104(a), 

2112, 2903 

■ 2. Amend § 1280.46 by: 

■ a. Adding ‘‘and’’ to the end of 

paragraph (b)(1); 

■ b. Removing ‘‘; and’’ from the end of 

paragraph (b)(2) and adding a period in 

its place; and 

■ c. Redesignating paragraph (b)(3) as 

paragraph (c) and revising it to read as 

follows: 

§ 1280.46 What are the rules for filming, 

photographing, or videotaping on NARA 

property for personal use? 

* * * * * 

(c) You may not film, photograph, or 

videotape in any of the exhibit areas of 

the National Archives Building in 

Washington, DC, including the Rotunda 

where the Declaration of Independence, 

the Constitution, and the Bill of Rights 

are displayed. 

Dated: January 14, 2010. 

David S. Ferriero, 

Archivist of the United States. 

[FR Doc. 2010–1331 Filed 1–22–10; 8:45 am] 

BILLING CODE 7515–01–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 202 

[Docket No. RM 2009–3] 

Mandatory Deposit of Published 

Electronic Works Available Only 

Online 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Interim Rule. 

SUMMARY: The Copyright Office of the 

Library of Congress is adopting an 

interim regulation governing mandatory 

deposit of electronic works published in 

the United States and available only 

online. The regulation establishes that 

online–only works are exempt from 

mandatory deposit until a demand for 

deposit of copies or phonorecords of 

such works is issued by the Copyright 

Office. It also states that categories of 

online–only works subject to demand 

will first be identified in the regulations, 

and names electronic serials as the first 

such category for which demands will 

issue. In addition, the regulation sets 

forth the process for issuing and 

responding to a demand for deposit, 

amends the definition of a ‘‘complete 

copy’’ of a work for purposes of 

mandatory deposit of online–only 

works, and establishes new best edition 

criteria for electronic serials available 

only online. 

EFFECTIVE DATE: February 24, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Tanya M. Sandros, Deputy General 

Counsel, or Christopher Weston, 

Attorney Advisor, Copyright GC/I&R, 

P.O. Box 70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202)–707–8366. 

SUPPLEMENTARY INFORMATION: The 

fundamental goal of this rulemaking 

proceeding is to establish a qualified 

exemption from the mandatory deposit 

requirement of 17 U.S.C. 407 for works 

available only online. In July 2009, the 

Copyright Office published a Notice of 

Proposed Rulemaking in the Federal 

Register, 74 FR 34286 (July 15, 2009), 

seeking public comment on proposed 

amendments to its mandatory deposit 

regulations at 37 CFR 202.19 and 

202.24, and Appendix B of Chapter 37. 

The notice proposed an exemption from 


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3864 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

mandatory deposit for all published 

online–only works until the Library 

identifies a particular category of such 

works as being subject to a deposit 

demand by the Copyright Office. Once 

a category of online–only works is 

identifed, the Copyright Office may 

issue demands upon the publisher that 

a single electronic copy be deposited 

within three months. The Office 

identified ‘‘electronic serials,’’ a term 

that the notice also proposed to define, 

as the initial category subject to the 

qualified exemption. The notice also 

proposed a demand issuance and 

response procedure, a definition of the 

term ‘‘complete copy’’ specific to 

online–only works, and a new best 

edition statement for electronic serials. 

Finally, the Notice sought public 

comment on the practical and legal 

concerns associated with the adoption 

of a requirement for publishers of 

online–only works to notify the Library 

upon the publication of a new online– 

only work in the United States. 

The Office received seven initial 

comments and, after an extension of the 

reply deadline, three reply comments. 

The initial comments were from Bose 

McKinney & Evans LLP, the American 

Society of Media Photographers 

(ASMP), the Association of American 

Publishers, Inc. (AAP), the American 

Library Association with the 

Association of Research Libraries (ALA– 

ARL), the Software & Information 

Industry Association (SIIA), the 

Professional Photographers of America 

(PPA), and the Newspaper Association 

of America (NAA). Reply comments 

were received from Patrice Lyons, an 

attorney; West, a publisher of works for 

the legal industry; and the ALA–ARL. 

All comments are available for viewing 

at http://www.copyright.gov/docs/ 

online–only/. 

Of the comments that directly 

addressed issues presented by the 

notice, most were generally favorable 

toward the Office’s proposal. However, 

the commenters did raise questions 

regarding the method of deposit, 

definitions of certain terms, user access 

to deposited works, and the proposed 

publisher notification requirement, 

among others. 

The Copyright Office, in consultation 

with the Library of Congress, has 

thoroughly considered these comments, 

and determined that the amendments 

will be adopted as an interim rule 

largely as proposed, with some changes 

as described in the Discussion section 

below. In addition, the Office and the 

Library have determined that it is 

unnecessary at this interim phase of the 

rulemaking process to impose a 

requirement for publishers of online– 

only works to notify the Library upon 

publication of a new work, although the 

Office may again consider the question 

when expanding the categories of 

online–only works subject to a 

mandatory deposit demand. 

The rule is interim, and not final, 

because the Office anticipates that the 

experience of issuing and responding to 

demands for online–only works will 

raise additional issues that should be 

considered before the regulation 

becomes final, e.g., the technical details 

of how an online–only work should be 

transmitted to the Copyright Office. 

Thus, the Office will provide an 

opportunity for additional comment 

later in 2010 in order to consider 

amendments to address problems or 

issues yet to be identified. 

I. Background 

Under section 407 of the Copyright 

Act of 1976, Title 17 of the United 

States Code, the owner of copyright, or 

of the exclusive right of publication, in 

a work published in the United States 

is required to deposit two complete 

copies (or, in the case of sound 

recordings, two phonorecords) of the 

best edition of the work with the 

Copyright Office for the use or 

disposition of the Library of Congress. 

The deposit is to be made within three 

months after such publication. Failure 

to make the required deposit does not 

affect copyright in the work, but it may 

subject the copyright owner to fines and 

other monetary liability if the owner 

fails to comply after a demand for 

deposit is made by the Register of 

Copyrights. These general provisions, 

however, are subject to limitations. 

Section 407 provides that the Register of 

Copyrights ‘‘may by regulation exempt 

any categories of material from the 

deposit requirements of this section, or 

require deposit of only one copy or 

phonorecord with respect to any 

categories.’’ 17 U.S.C. 407(c). 

Accordingly, in 1978 the Copyright 

Office, with the approval of the 

Librarian of Congress, established 

regulations governing mandatory 

deposit, which are set forth in Chapter 

II, Part 202 of Title 37 of the Code of 

Federal Regulations. Section 202.19 

establishes the standards governing 

mandatory deposit of copies and 

phonorecords published in the United 

States for the Library of Congress, and 

section 202.21 allows for a deposit of 

identifying material in lieu of copies or 

phonorecords in certain cases, for both 

mandatory deposit and registration 

deposit. In addition, the Library of 

Congress’s Best Edition Statement in 

Appendix B of Part 202 specifies the 

required deposit in instances where 

‘‘two or more editions of the same 

version of a work have been published.’’ 

At that time, the Copyright Office also 

adopted a regulation exempting 

machine–readable literary works from 

mandatory deposit. Copies of machine– 

readable works were not widely 

marketed to the public and the Library 

had no interest in collecting these 

works, so it decided not to require their 

deposit. However, in 1989, in response 

to the increased use of databases and 

computer programs distributed in CD– 

ROM and other formats and an 

increased demand by Library users for 

these works, the Copyright Office 

amended the machine–readable copies 

exemption so that machine–readable 

works published in physical form were 

subject to mandatory deposit, and only 

‘‘automated databases available only 

online in the United States’’ were 

exempted. 54 FR 42295 (Oct. 16, 1989). 

The Copyright Office identified the 

exempted category of works as such to 

refer to all online–only publications 

since, for all practical purposes, the 

only works being published online in 

1989 were automated databases, e.g., 

Westlaw and Nexis. As other categories 

of works, such as articles and serial 

titles, began to be published only 

online, the Copyright Office included 

them in the exempted category because 

the Library in the early 1990s had 

neither the intention nor the technology 

to collect such works, and it also 

continued to use the term ‘‘automated 

databases available only on–line in the 

United States’’ as a matter of 

convenience. Hence, Copyright Office 

practice to date has been to interpret 

‘‘automated databases available only 

online in the United States’’ broadly as 

encompassing all electronic works 

published only online. 

Much has changed in the twenty years 

that have passed since the adoption of 

the regulation used to exclude 

electronic works published in the 

United States and available only online 

from mandatory deposit. In that time, 

the Internet has grown to become a 

fundamental tool for the publication 

and dissemination of millions of works 

of authorship. To cite just one pertinent 

example, the Library has determined 

that there are now more than five 

thousand scholarly electronic serials 

available exclusively online, with no 

print counterparts. In some cases the 

Library has purchased subscriptions to 

these periodicals, but such 

subscriptions are typically ‘‘access 

only,’’ and rarely allow the Library to 

acquire a ‘‘best edition’’ copy for its 

collections. However, the current 

inability of the Library to acquire 

online–only works through mandatory 


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Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3865 

1Note that the Library’s current Best Edition 

Statement for ‘‘Works Existing in More Than One 

Medium’’ does not currently list electronic formats. 

See, e.g., 37 CFR 202.20(b)(1) ‘‘For purposes of this 

section, if a work is first published in both hard 

copy, i.e., in a physically tangible format, and also 

in an electronic format, the current Library of 

Congress Best Edition Statement requirements 

pertaining to the hard copy format apply.’’) 

Nevertheless, the Library of Congress retains the 

authority to determine what constitutes ‘‘best 

edition’’ and it may decide at a future time that, 

when a particular work is published in both print 

and electronic editions, the electronic edition is the 

‘‘best edition’’ for purposes of mandatory deposit. 

2The Copyright Act states that ‘‘a work is ‘fixed’ 

in a tangible medium of expression when its 

embodiment in a copy or phonorecord, by or under 

the authority of the author, is sufficiently 

permanent or stable to permit it to be perceived, 

reproduced, or otherwise communicated for a 

period of more than transitory duration. A work 

consisting of sounds, images, or both, that are being 

transmitted, is ‘‘fixed’’ for purposes of this title if a 

fixation of the work is being made simultaneously 

with its transmission.’’ 17 U.S.C. 101. A fixed work 

may be perceived, reproduced, or otherwise 

communicated ‘‘either directly or with the aid of a 

machine or device.’’ 17 U.S.C. 102(a). 

deposit places the long–term 

preservation of the works at risk. 

Thus, to fulfill its mission to sustain 

and preserve a universal collection of 

knowledge, and to inform Congress, the 

Library is currently developing 

technological systems that will allow it 

to ingest electronic works, including 

those available exclusively online, and 

maintain them in formats suitable for 

long–term preservation. In addition, the 

Copyright Office is amending the 

mandatory deposit regulations to enable 

the on–demand mandatory deposit of 

electronic works published in the 

United States and available only online 

(i.e., not published in physical form). 

To date, mandatory deposit of works 

in physical formats has been one of the 

most important methods for building 

the Library’s collections and making it 

the world’s largest repository of 

knowledge and creativity. With the 

adoption of this amendment, mandatory 

deposit will apply in a measured and 

balanced way to works offered only in 

the digital environment as well. 

II. Discussion 

In its July 15 notice, the Copyright 

Office proposed that the current 

§ 202.19(c)(5) exemption be amended so 

that all electronic works published in 

the United States and available only 

online enjoy a qualified exemption from 

mandatory deposit, which means that 

any work in this class would be exempt 

until the Copyright Office issues a 

demand for its deposit. This revised 

exemption would apply to all published 

electronic works available only online. 

The exemption would apply to serials, 

monographs, sound recordings, 

automated databases, cartography, and 

all other categories of electronic works. 

Furthermore, because the revised 

exemption would apply exclusively to 

published online–only works, there 

would be no need to retain the current 

list of machine–readable works in 

physical formats to which the 

exemption did not apply. Finally, the 

notice emphasized that the revised 

exemption would not apply to those 

works published in both physical and 

online formats. These works, because 

they are not published ‘‘only’’ online, 

were never exempted from mandatory 

deposit by § 202.19(c)(5).1 The interim 

regulation promulgated by this notice is 

consistent with all of the above aspects 

of the notice of proposed rulemaking. 

The rule establishing a qualified 

mandatory deposit exemption for 

online–only works seeks to balance the 

current needs of the Library of Congress 

against the imposition of a mandatory 

requirement on all copyright owners of 

works published exclusively online to 

deposit one complete copy of the best 

edition. By exempting published 

electronic works available only online 

until a demand is made, the qualified 

exemption addresses the practical 

difficulties of acquiring works 

published in non–physical formats, 

ensures that the Library will only 

receive those works that it needs for its 

collections, and reduces the burden on 

copyright owners, who will only have to 

deposit those works demanded by the 

Copyright Office. 

Commenters were generally 

supportive of the Office’s goal of a 

qualified exemption for online–only 

works, with one stating that it appeared 

to be ‘‘sensible and non–controversial.’’ 

AAP Comment at 2. However, they also 

raised a number of questions concerning 

the scope of the term ‘‘electronic 

serials,’’ the process for responding to 

deposit demands, the inclusion of 

metadata and formatting codes in 

deposit copies, user access to deposit 

copies of online–only works, and the 

nature of publication on the Internet. 

Commenters also responded to the 

Office’s request for reactions to the 

concept of requiring publishers of 

online–only works to provide notice to 

the Library upon publication of a new 

work as a mechanism for identification 

of the works that exist in this format. 

These issues, along with the related 

changes incorporated into the interim 

rule, are discussed in the sections that 

follow. 

Category–by–Category Demands, 

Beginning with Electronic Serials 

As explained in the July 15 notice, the 

initial category of online–only works 

that will be subject to demand deposit 

is ‘‘electronic serials.’’ (‘‘This class 

includes periodicals; newspapers; 

annuals; and the journals, proceedings, 

transactions, etc. of societies.’’) 

In its comments, West supported the 

decision to begin with electronic serials 

because they ‘‘appear to be analogous to 

print serials which are printed in 

separate, successive discrete editions.’’ 

West comment at 2. This is, in fact, the 

same rationale applied by the Library. 

While serials encompass everything 

from scholarly journals to daily 

newspapers to semiweekly newsletters, 

the Library’s demands for electronic 

serials initially will be restricted to 

journals that publish no more often than 

weekly, and have the same, or similar, 

appearance, formatting, and regular 

issue schedule as print journals. 

However, West did request that the 

electronic serials definition be revised 

so that it cannot be read to cover 

databases or blogs. In response, the 

Office notes that the definition in the 

interim rule has been revised to say that 

an electronic serial must be ‘‘issued or 

intended to be issued on an established 

schedule, in successive parts bearing 

numerical or chronological 

designations, without subsequent 

alterations.’’ This limitation, the Office 

believes, does in fact exclude works like 

databases and blogs that are constantly 

updated with no demarcations between 

particular, discrete issues of the 

publication. 

SIIA also commented on the 

definition of electronic serials. It opined 

that the use of ‘‘etc.’’ in the last sentence 

of the definition of electronic serials 

may cause it to be read too broadly. See 

SIIA comment at 6–7. The Office 

disagrees. The Office notes that ‘‘etc.’’ 

only extends the list of publications 

issued by societies, and not the larger 

list of electronic serials. However, there 

is no harm in replacing it with ‘‘and 

other publications,’’ which is how the 

interim rule now reads. 

Commenters also requested additional 

definitions to clarify the category of 

electronic serials or questioned the use 

of other terms in the context of this rule. 

Specifically, Patrice Lyons commented 

that the exempted category ‘‘electronic 

works,’’ (of which ‘‘electronic serials’’ is 

a subset), is problematic because it 

implies a lack of the ‘‘fixation in a 

tangible medium of expression’’ 

required for copyright protection. Lyons 

comment at 1–2. She suggests instead 

the term ‘‘digital object.’’ Id., at 2.2 The 

Office does not agree that introducing 

new terminology is necessary. The 

interim regulation must be understood 


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3866 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

3The proposition that electronic works are 

sufficiently ‘‘fixed’’ on the computers where they 

originate so as to be copyrightable has been ratified, 

albeit tacitly, by numerous courts. See, e.g. London– 

Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 

170–71 (D. Mass, 2008); A&M v. Napster, 239 F.3d 

1004, 1014 (9th Cir., 2001); Marobie–Fl., Inc. v. 

National Ass’n of Fire Equip. Distribs., 983 F. Supp. 

1167, 1177–78 (N.D. Ill, E. Div., 1997). 

in the context of the overall body of 

copyright regulations, where works 

embodied in digital files are described 

as ‘‘electronic’’ in contrast to works fixed 

in materials that are ‘‘physically 

tangible.’’ See 37 CFR 202.20(b)(1). In 

this context, ‘‘electronic’’ clearly does 

not mean ‘‘unfixed.’’ While online–only 

digital files may not be visible or 

perceptible to touch they are still fixed 

in a tangible medium of expression by 

virtue of their embodiment on a 

computer’s hard drive, on a server, or on 

any other device that allows them to be 

communicated.3 However, the Office 

agrees that the term ‘‘electronic works’’ 

presents some ambiguity as to fixation 

in tangible medium, in that it suggests 

that the nature of the work itself is 

electronic, as opposed to the intended 

meaning that the work is merely fixed 

and published in an electronic format. 

Thus, the interim rule defines the term 

in the mandatory deposit context as 

‘‘works fixed and published solely in an 

electronic format.’’ 

ASMP commented that ‘‘electronic,’’ 

along with the words ‘‘digital’’ and 

‘‘online’’ must be ‘‘clearly defined’’ in the 

regulation. ASMP comment at 3. While 

the Copyright Office agrees that 

definitions of terms are useful in some 

cases, it believes that definitions also 

have the potential to unintentionally 

obfuscate or limit common 

understandings. The three terms ASMP 

cites appear throughout Title 17 and the 

Office’s regulations without definition, 

and this state of affairs has not caused 

confusion or controversy. The Copyright 

Office is concerned that defining them 

solely for the purpose of the present 

interim rule would have unintended 

consequences. Furthermore, the terms 

‘‘electronic’’ and ‘‘digital’’ appear in the 

statute and the current regulations 

exclusively as modifiers (e.g., 

‘‘electronic transmission,’’ ‘‘digital 

networks’’), making their definition as 

stand–alone terms potentially 

confusing. Moreover, there is no need to 

define the term ‘‘digital’’ because it in 

fact does not appear in the present 

interim rule at all. 

Best Edition Statement 

Regarding the proposed Best Edition 

Statement for electronic serials, the 

Office received one approving comment 

(from SIIA) and no criticisms. See SIIA 

comment at 7. However, in order to 

correct a minor technical error, the 

reference to ‘‘OpenXML’’ in section 

IX.A.1.c.ii of Appendix B has been 

changed to ‘‘Office OpenXML.’’ As 

stated in the July 15 notice, best edition 

criteria for other categories of electronic 

works published in the United States 

and available only online will follow as 

new categories become subject to 

demand deposit. 

The Copyright Act states that the ‘‘best 

edition’’ of a work ‘‘is the edition, 

published in the United States at any 

time before the date of deposit, that the 

Library of Congress determines to be 

most suitable for its purposes.’’ 17 

U.S.C. 101. In other words, an edition of 

a work, no matter its quality, is not the 

‘‘best edition’’ unless it has been 

published. Thus, if the published format 

of a demanded electronic serial does not 

meet any of the best edition criteria, the 

publisher is still obligated to send a 

copy of the serial in whatever form it is 

published. Furthermore, the Copyright 

Office may not require that a rights– 

holder deposit an edition of the work 

that has not been published. 

Demand Deposit Process 

The process by which the Copyright 

Office will demand electronic serials is 

similar to that used to demand other 

published works under 17 U.S.C. 

407(d). Once a category of works is 

identified as being subject to demand 

under the qualified exemption of 

§ 202.19(c)(5), the Copyright Office may 

make a demand on the owner of 

copyright or of the exclusive right of 

publication for a single complete copy 

of a work in that category, for any such 

work published on or after the date that 

this proposed regulation goes into effect. 

The owner of copyright or of the 

exclusive right of publication will have 

three months from the date of receipt of 

the notice in which to make the deposit, 

in keeping with the time period allotted 

by statute for deposit of the best edition 

of a published work not subject to an 

exemption. See 17 U.S.C. 407(a). The 

regulation also includes a provision 

allowing special relief to accommodate, 

for example, situations where a 

publisher may need more time to make 

the deposit or wishes to arrange for 

alternative means of making a deposit. 

Special relief, however, is granted at the 

discretion of the Library. 

The mandatory deposit provision in 

the copyright law grants the Copyright 

Office authority to reduce the required 

number of deposit copies from two to 

one. See 17 U.S.C. 407(c)(1). Pursuant to 

this authority, the interim rule states 

that only a single copy or phonorecord 

of a demanded work is required. The 

Office has determined that transmitting 

duplicate electronic files presents a risk 

of slowing down the electronic ingest 

system of the Library, particularly in the 

case of a work consisting of a single 

large file or of many small files. 

Nevertheless, the Library may allow two 

on–site users to simultaneously access 

the single copy of an online–only work. 

This achieves, in an efficient and 

flexible manner, the statute’s goal of 

providing two copies of a published 

work to the Library of Congress. As the 

only commenter to opine on the single 

copy requirement, the SIIA indicated its 

agreement with it. See SIIA comment at 

7. 

On the other hand, commenters did 

raise questions and express concerns 

about the method, form, version, 

frequency, and format of depositing 

copies of online–only works with the 

Copyright Office in response to a 

demand. The Office believes, at least for 

the purposes of this interim rule that 

these issues will require a flexible 

approach and are not currently suited to 

resolution via this rulemaking. The 

present interim rule is an early step in 

the Library’s program of acquiring 

online–only works, and the Library 

requires more information and 

experience with electronic publications 

before considering specific regulations 

to govern the demand deposit process. 

That said, rights–holders should note 

that the Best Edition Statement for 

electronic serials contains detailed 

technical standards for the preferred 

deposit formats, and should be 

consulted in the event an online–only 

work exists in more than one version. 

Regarding the possibility raised by SIIA 

and NAA of a rights–holder providing a 

direct feed to the Copyright Office, this 

is one option that may be explored once 

the demand deposit system is 

operational and adjustments are made. 

However, the Copyright Office is 

unprepared at this time to implement a 

regulation allowing rights–holders to 

meet their mandatory deposit 

obligations by providing a website link 

to the Office so that the Office may 

download an electronic serial itself. The 

Library recognizes that this approach 

represents an attractive alternative to 

publishers of works made available 

online, but it needs to examine the issue 

in more depth before considering 

including a link–and–download option 

in the regulations. Thus, for the 

immediate future, such an arrangement 

should be a matter of special relief. 

The question of frequency of deposits 

was also raised by SIIA in the context 

of publishers who might want to delay 

depositing issues of their serials for 

business reasons. See SIIA comment at 


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Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3867 

4The regulations for group registration of serial 

titles are at 37 CFR 202.3(b)(6)(v) and 37 CFR 

202.20(c)(xvii). 

4. Unless a publisher decides to deposit 

its online–only serials via group 

registration,4 it must deposit the work 

with the Library within three months of 

receipt of the demand notice, and it is 

expected that each issue of a demanded 

serial will be deposited with the 

Copyright Office thereafter as is the 

current practice, without the need for 

additional demand notices. The 

mandatory deposit requirement does not 

vary by business model, and the 

Library’s need for timely deposits of 

serials does not change depending upon 

the format in which a serial is 

published. 

Standards regarding the specific 

method of transmission of online–only 

works will be developed by the 

appropriate divisions of the Library and 

the Copyright Office, in consultation 

with rights–holders as warranted. These 

standards will be posted on the 

Copyright Office website 

(www.copyright.gov) and depositors 

will be able to contact the Office by 

telephone with any questions. 

Complete Copy 

The interim rule clarifies that a 

‘‘complete copy’’ of a published 

electronic work available only online 

includes the associated metadata and 

formatting codes that make up the unit 

of publication. Section 407 of Title 17 

requires the deposit of a complete copy 

of the best edition of a work published 

in the United States. Section 

202.19(b)(2) of the Copyright Office 

regulations defines a ‘‘complete copy’’ of 

a work for purposes of mandatory 

deposit as one that ‘‘includes all 

elements comprising the unit of 

publication of the best edition of the 

work, including elements that, if 

considered separately, would not be 

copyrightable subject matter or would 

otherwise be exempt from mandatory 

deposit requirements under paragraph 

(c) of this section.’’ Published electronic 

works often contain elements such as 

metadata and formatting codes that, 

while they are not perceptible to the 

naked eye or ear, are part of the unit of 

publication. These elements are also 

critical for continued access to and 

preservation of a work once it is 

deposited. 

Neither NAA, ASMP, nor SIIA 

opposed including metadata and 

formatting codes in the definition of 

‘‘complete copy.’’ See NAA comment at 

20, ASMP comment at 2–3, SIIA 

comment at 7. However, AAP expressed 

concern that these elements may be 

difficult to assemble and transmit to the 

Copyright Office as part of a single 

work, particularly for interactive works 

where elements exist on multiple 

servers for short periods of time and are 

regulated with digital management 

technology. AAP comment at 3. Patrice 

Lyons also noted the problem of 

dispersed elements of a work, and 

suggested adding ‘‘information 

management system used to structure 

and identify’’ to the definition of 

‘‘complete copy.’’ Lyons comment at 3. 

As has been stressed in this notice, 

the Library and Copyright Office will be 

focusing their initial demands on the 

subset of electronic serials that are 

analogous to print journals. This means 

that the works will be self–contained 

documents with no ability for the user 

to affect the content. The Office 

recognizes that future demands for 

online–only newspapers, web sites, and 

other categories may require 

adjustments to what constitutes a 

‘‘complete copy.’’ This is one of the 

reasons that, as the Library expands its 

collection of online–only works to other 

categories, the Office will seek public 

comment before adding a new category 

to § 202.19(c)(5) as being subject to 

demand. 

On the related question of what 

constitutes an online–only work, the 

NAA argues that, without a definition of 

‘‘online–only,’’ the term creates 

uncertainty as to whether a newspaper’s 

website is sufficiently different from the 

print version so as to constitute a 

separate, online–only work. NAA 

comment at 7. In response, the Office 

notes that the interim regulation does 

exclude works published in both 

physical and online editions from the 

definition of ‘‘online–only’’ in the last 

sentence of section 202.19(c)(5) (‘‘This 

exemption does not apply to works that 

are published in both online, electronic 

formats and in physical formats, which 

remain subject to the appropriate 

mandatory deposit requirements.’’) In 

addition, the NAA itself points to the 

Library’s Best Edition Statement 

guidance that if two editions of a work 

have ‘‘variations in copyrightable 

content, then each edition is a separate 

work.’’ 37 CFR Ch.II, Part 202, App. B. 

In other words simply publishing the 

same content in both print and 

electronic formats does not create two 

separate copyrightable works. This 

guidance can, the Office believes, be 

profitably applied to print and online 

versions of a newspaper, but recognizes 

the possibility of the need to revisit this 

issue at a later date. The Library, 

however, will not initially be 

demanding online–only newspapers, or 

the online–only content of newspapers 

published both electronically and in 

print. 

Access to Deposit Copies 

As the AAP points out, online–only 

works may be regulated with digital 

management technology. The Copyright 

Office acknowledges that many 

publishers rely on such technology to 

prevent unauthorized access to or use of 

their works. However, copies of works 

submitted to the Copyright Office under 

this interim rule must be accessible to 

the Office, the Library, and the Library’s 

users. Thus, the following provision has 

been added to the regulation’s demand 

deposit conditions in § 202.24: ‘‘Copies 

or phonorecords deposited in response 

to a demand must be able to be accessed 

and reviewed by the Copyright Office, 

Library of Congress, and the Library’s 

authorized users on an ongoing basis.’’ 

In addition, the Best Edition Statement 

for electronic serials has been revised so 

that the final criterion now reads, 

‘‘Technological measures that control 

access to or use of the work should be 

removed.’’ 

In its July 15th notice, the Office 

stated that ‘‘the Library will . . . establish 

policies and practices to insure the 

security and integrity of its electronic 

collections, and to provide appropriate, 

limited access as allowed by law.’’ AAP, 

West, and SIIA asked for more detailed 

information regarding user access 

restrictions, specifically regarding 

downloading, distribution, and 

interlibrary loan functionality. See AAP 

comment at 2–3, West comment at 2–3, 

SIIA comment at 6. The Library and the 

Copyright Office recognize that 

electronic works, because of their ease 

of reproduction and distribution, 

present special security concerns. For 

this reason, access to these works will 

be available only to authorized users at 

the Library of Congress (including its 

Packard Campus for Audio–Visual 

Conservation in Culpeper, VA and its 

National Library Service for the Blind 

and Physically Handicapped at the 

Taylor Street Annex in Washington, DC) 

and Capitol Hill facilities in accordance 

with the policies listed below. 

• Access to electronic works received 

through mandatory deposit will be as 

similar as possible to the access 

provided to analog works. 

• Access to electronic works received 

through mandatory deposit will be 

limited, at any one time, to two Library 

of Congress authorized users. 

• Library of Congress authorized 

users will access the electronic works 

via a secure server over a secure 

network that serves Capitol Hill 

facilities and remote Library of Congress 

locations. The term ‘‘Library of Congress 


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5 ‘‘Phonorecords’’ are similarly defined as 

‘‘material objects in which sounds, other than those 

accompanying a motion picture or other 

audiovisual work, are fixed by any method now 

known or later developed, and from which the 

sounds can be perceived, reproduced, or otherwise 

communicated, either directly or with the aid of a 

machine or device. The term ‘phonorecords’ 

includes the material object in which the sounds 

are first fixed.’’ 17 U.S.C. 101. For convenience, this 

notice uses ‘‘copies’’ to refer to both copies and 

phonorecords. 

authorized users’’ includes Library staff, 

contractors, and registered researchers, 

and Members, staff and officers of the 

U.S. House of Representatives and the 

U.S. Senate. The Library will not make 

the copyrighted works available to the 

public over the Internet without rights 

holders’ permissions. 

• Authorized users may print from 

electronic works to the extent allowed 

by the fair use provisions of the 

copyright law (17 U.S.C. 107 and 

108(f)), as is the case with traditional 

publications. However, users may not 

reproduce or distribute (i.e., download 

or email) copies of deposited electronic 

works until the Library has explored the 

advisability of permitting these options 

and the security and feasibility of the 

implementing technologies. As part of 

this process, the Library will seek 

comment from the public, including 

copyright owners and publishers, before 

adopting additional policies governing 

electronic copying or distribution by 

electronic transmission. 

Notice of Publication 

The interim rule does not include a 

requirement that rights–holders notify 

the Library of Congress upon the 

publication of a new electronic serial, or 

any online–only work, in the United 

States. The Copyright Office requested 

comments on whether such a 

requirement would be necessary, 

prudent, or consistent with the Office’s 

authority as granted by 17 U.S.C. 407. 

All commenters who addressed this 

question did so in the context of 

whether it would be necessary or 

prudent. These commenters opposed 

the requirement on the grounds that it 

would be too burdensome to rights– 

holders, particularly those who publish 

new works on a frequent basis. Some 

also asserted that the Library alone 

should bear the responsibility of 

researching electronic serials, 

particularly given the numbers of small 

publishers who would likely remain 

ignorant of the rule. AAP objected that 

there was not enough detail about how 

the requirement would be administered 

for it to address the issue. AAP 

comment at 3. ASMP suggested that 

registration applications could contain a 

field indicating whether a work is 

online–only, and that the Library could 

generate a list from these applications of 

works to demand. ASMP comment at 2. 

The Copyright Office believes that the 

question of a notice requirement need 

not be addressed in the present 

rulemaking. As indicated in the July 

15th notice, there currently exists an 

adequate level of bibliographic control 

over electronic serials. However, as the 

Copyright Office and the Library gain 

experience with electronic serials, and 

other categories of online–only work are 

removed from the exemption and 

become subject to demand, the issue of 

the most efficient and comprehensive 

way to make the Library aware of what 

online–only works are available will 

likely be raised again. 

On the subject of publication, Patrice 

Lyons also queried whether works 

available only online are truly 

‘‘published’’ within the meaning of the 

Copyright Act. Section 101 of title 17 

defines ‘‘publication’’ as: ‘‘The 

distribution of copies or phonorecords 

of a work to the public by sale or other 

transfer of ownership, or by rental, 

lease, or lending. The offering to 

distribute copies or phonorecords to a 

group of persons for purposes of further 

distribution, public performance, or 

public display, constitutes publication. 

A public performance or display of a 

work does not of itself constitute 

publication.’’ It defines ‘‘copies’’ as 

‘‘material objects, other than 

phonorecords, in which a work is fixed 

by any method now known or later 

developed, and from which the work 

can be perceived, reproduced, or 

otherwise communicated, either directly 

or with the aid of a machine or device. 

The term ‘copies’ includes the material 

object, other than a phonorecord, in 

which the work is first fixed.’’ 17 U.S.C. 

101.5 These definitions led Ms. Lyons to 

challenge the assumption that a 

publication takes place when ‘‘a work 

represented in digital form is made 

available, publicly and/or privately in 

an internet environment, but no 

physical copy changes hands.’’ Lyons 

comment at 2. Ms. Lyons also expressed 

concern that treating online–only works 

as publications might ‘‘have 

implications on other sections of the 

U.S. Copyright Law, in particular, what 

rights are implicated when a 

copyrighted work is made available in 

an Internet environment, but no 

physical object, i.e., copy, changes 

hands.’’ Id. As an alternative, she 

suggested that the public performance 

right may ‘‘play an important role in this 

context.’’ Id. 

As a threshold matter, it appears 

well–settled electronic files are ‘‘fixed’’ 

in the sense that they reside on server 

hard drives which are, as discussed 

above, material objects, and thus the 

files meet the ‘‘copies’’ requirement of 

publication and distribution. To the 

extent that Ms. Lyons is questioning 

whether publication can take place by 

means of electronic transmission, that 

issue has also been settled. In New York 

Times Co. v. Tasini, 533 U.S. 483 (2001), 

the Supreme Court concluded that 

online databases that made copies of 

articles available electronically 

‘‘reproduce and distribute’’ copies of 

those articles. Cases involving peer–to– 

peer file–sharing on the Internet have 

also recognized that online transmission 

constitutes distribution. See Metro– 

Goldwyn–Mayer v. Grokster, 545 U.S. 

913 (2005) (noting that ‘‘peer–to–peer 

networks are employed to store and 

distribute electronic files‘‘ and that 

peer–to–peer software ‘‘enabled users to 

reproduce and distribute the 

copyrighted works in violation of the 

Copyright Act.’’); London–Sire Records, 

Inc. v. Doe 1, 542 F. Supp. 2d 153, 170– 

172 (D. Mass, 2008) (stating that ‘‘an 

electronic file transfer is plainly within 

the sort of transaction that § 106(3) [the 

distribution right] was intended to 

reach.’’). Because ‘‘[u]nder the definition 

in section 101, a work is ‘published’ if 

one or more copies or phonorecords 

embodying it are distributed to the 

public,’’ H.R. Rep. No. 96–1976, at 138 

(1976), it follows that the electronic 

transmission of copies of a work to the 

public, as addressed in the distribution 

context in Tasini and Grokster, 

constitutes publication of that work. 

Comments Outside of the Scope of the 

Rulemaking 

A number of commenters raised 

issues related to but outside of the scope 

of mandatory deposit for online–only 

works. Specifically, comments from 

BME, NAA, ASMP, and PPA regarding 

copyright registration cannot properly 

be addressed in a mandatory deposit 

rulemaking. Comments seeking a 

permanent exemption for mandatory 

deposit for photographs and databases 

are more appropriately raised when and 

if the Copyright Office proposes making 

those categories subject to demand. See 

PPA comment at 3; West comment at 4– 

5. Similarly, ASMP’s request for a 

reevaluation of the best edition 

requirement regarding works published 

in both print and electronic formats goes 

beyond the immediate questions raised 

in the notice. See ASMP comment at 2. 

Indeed, the notice specifically stated 

that the proposed regulation would not 

apply ‘‘to those works published in both 

physical and online formats.’’ 74 FR, at 

34287. ASMP also proposed that the 

regulation set standards for the medium, 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3869 

security devices, and metadata for a 

copy of a deposited online–only work to 

be provided by the Library to a litigant. 

See id. at 3. This topic is out–of–scope 

as well. 

Finally, SIIA and West comment that 

fines for noncompliance with a demand 

should be imposed on a per–serial, 

rather than a per–work basis, is actually 

a question of statutory change beyond 

the purview of this or any rulemaking. 

While section 407 does grant the 

Register of Copyrights the discretion 

whether to impose a fine at all, it does 

not grant her the discretion to determine 

on what basis a fine may be imposed. 

List of Subjects in 37 CFR Part 202 

Copyright, Registration of claims to 

copyright. 

Interim Regulation 

■ In consideration of the foregoing, the 

Copyright Office amends part 202 of 37 

CFR as follows: 

PART 202 – PREREGISTRATION AND 

REGISTRATION OF CLAIMS TO 

COPYRIGHT 

■ 1. The authority citation for part 202 

continues to read as follows: 

Authority: 17 U.S.C. 702. 

■ 2. Amend § 202.19 as follows: 

■ a. By adding a new sentence at the 

end of the undesignated paragraph 

following paragraph (b)(2)(ii); 

■ b. By adding a new paragraph (b)(4); 

and 

■ c. By revising paragraph (c)(5). 

The additions and revisions to 

§ 202.19 read as follows: 

§ 202.19 Deposit of published copies or 

phonorecords for the Library of 

Congress. 

* * * * * 

(b) * * * 

(2) * * * In the case of an electronic 

work published in the United States and 

available only online, a copy is 

‘‘complete’’ if it includes all elements 

constituting the work in its published 

form, i.e., the complete work as 

published, including metadata and 

formatting codes otherwise exempt from 

mandatory deposit. 

* * * * * 

(4) For purposes of § 202.19(c)(5) of 

this regulation, an electronic serial is an 

electronic work published in the United 

States and available only online, issued 

or intended to be issued on an 

established schedule in successive parts 

bearing numerical or chronological 

designations, without subsequent 

alterations, and intended to be 

continued indefinitely. This class 

includes periodicals, newspapers, 

annuals, and the journals, proceedings, 

transactions, and other publications of 

societies. 

(c) * * * 

(5) Electronic works published in the 

United States and available only online. 

This exemption includes electronic 

serials available only online only until 

such time as a demand is issued by the 

Copyright Office under the regulations 

set forth in § 202.24 of these regulations. 

This exemption does not apply to works 

that are published in both online, 

electronic formats and in physical 

formats, which remain subject to the 

appropriate mandatory deposit 

requirements. 

* * * * * 

■ 3. Add a new § 202.24, as follows: 

§ 202.24 Deposit of published electronic 

works available only online. 

(a) Pursuant to authority under 17 

U.S.C. 407(d), the Register of Copyrights 

may make written demand to deposit 

one complete copy or a phonorecord of 

an electronic work published in the 

United States and available only online 

upon the owner of copyright or of the 

exclusive right of publication in the 

work, under the following conditions: 

(1) Demands may be made only for 

works in those categories identified in 

§ 202.19(c)(5) of these regulations as 

being subject to demand. 

(2) Demands may be made only for 

works published on or after February 

24, 2010. 

(3) The owner of copyright or of the 

exclusive right of publication must 

deposit the demanded work within 

three months of the date the demand 

notice is received. 

(4) Copies or phonorecords deposited 

in response to a demand must be able 

to be accessed and reviewed by the 

Copyright Office, Library of Congress, 

and the Library’s authorized users on an 

ongoing basis. 

(b) Technical standards. Technical 

standards for the transmission of copies 

of online–only works to the Copyright 

Office in response to a demand will be 

available on the Copyright Office 

website (www.copyright.gov). 

(c) Definitions. (1) ‘‘Best edition’’ has 

the meaning set forth in § 202.19(b)(1) of 

these regulations. 

(2) ‘‘Complete copy’’ has the meaning 

set forth in § 202.19(b)(2) of these 

regulations. 

(3) ‘‘Electronic works’’ are works fixed 

and published solely in an electronic 

format. 

(d) Special relief. (1) In the case of any 

demand made under paragraph (a) of 

this section, the Register of Copyrights 

may, after consultation with other 

appropriate officials of the Library of 

Congress and upon such conditions as 

the Register may determine after such 

consultation, 

(i) Extend the time period provided in 

section 407(d) of Title 17; 

(ii) Permit the deposit of incomplete 

copies or phonorecords; or 

(iii) Permit the deposit of copies or 

phonorecords other than those normally 

comprising the best edition. 

(2) Any decision as to whether to 

grant such special relief, and the 

conditions under which special relief is 

to be granted, shall be made by the 

Register of Copyrights after consultation 

with other appropriate officials of the 

Library of Congress, and shall be based 

upon the acquisition policies of the 

Library of Congress then in force. 

(3) Requests for special relief under 

this section shall be made in writing to 

the Copyright Acquisitions Division, 

shall be signed by or on behalf of the 

owner of copyright or of the exclusive 

right of publication in the work, and 

shall set forth specific reasons why the 

request should be granted. 

* * * * * 

■ 4. Amend Part 202, Appendix B as 

follows: 

■ a. By redesignating section IX as 

section X; and 

■ b. By adding a new section IX. 

The revision to Part 202, Appendix B 

reads as follows: 

Appendix B to Part 202 – ‘‘Best Edition’’ 

of Published Copyrighted Works for the 

Collections of the Library of Congress 

* * * * * 

IX. Electronic Works Published in the 

United States and Available Only Online 

For all deposits, UTF–8 encoding is 

preferred to ASCII encoding and other non 

UTF–8 encodings for non–Latin character 

sets in all categories below. 

A. Electronic Serials 

1. Content Format 

a. Level 1: Serials–specific structured/ 

markup format: 

(i) Content compliant with the NLM 

Journal Archiving (XML) Document Type 

Definition (DTD), with presentation 

stylesheet(s), rather than without. 

(ii) Other widely used serials or journal 

XML DTDs/schemas, with presentation 

stylesheet(s), rather than without. 

(iii) Proprietary XML format for serials or 

journals (with documentation), with DTD/ 

schema and presentation stylesheet(s), rather 

than without. 

b. Level 2: Page–oriented rendition: 

(i) PDF/A (Portable Document Format/ 

Archival; compliant with ISO 19005). 

(ii) PDF (Portable Document Format, with 

searchable text, rather than without). 

c. Level 3: Other formats: 

(i) XHTML/HTML, as made available 

online, with presentation stylesheets(s), 

rather than without. 


jlentini on DSKJ8SOYB1PROD with RULES
3870 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

(ii) XML (widely used, publicly 

documented XML–based word–processing 

formats, e.g., ODF/OpenDocument Format, 

Office OpenXML), with presentation 

stylesheets(s), if appropriate, rather than 

without. 

(iii) Plain text. 

(iv) Other formats (e.g., proprietary word 

processing or page layout formats). 

2. Metadata Elements: 

If it has already been gathered and is 

available, descriptive data (metadata) as 

described below should accompany the 

deposited material. 

a. Title level metadata: serial or journal 

title, ISSN, publisher, frequency, place of 

publication. 

b. Article level metadata, as relevant/ 

applicable: volume(s), number(s), issue 

dates(s), article title(s), article author(s), 

article identifier (DOI, etc.). 

c. With other descriptive metadata (e.g., 

subject heading(s), descriptor(s), abstract(s)), 

rather than without. 

3. Technological measures that control 

access to or use of the work should be 

removed. 

Dated: January 13, 2010. 

Marybeth Peters, 

Register of Copyrights. 

Approved by: 

James H. Billington, 

Librarian of Congress. 

[FR Doc. 2010–1202 Filed 1–22–10; 8:45 am] 

BILLING CODE 1410–30–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2008–0797–200824(c); 

FRL–9099–9] 

Approval and Promulgation of 

Implementation Plans; South Carolina; 

Approval of Section 110(a)(1) 

Maintenance Plan for the 1997 8-Hour 

Ozone Standard for Cherokee County; 

Correcting Amendment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; Correcting 

amendment. 

SUMMARY: On June 1, 2009, EPA 

published a direct final rule approving 

the Clean Air Act (CAA) Section 

110(a)(1) Maintenance Plan for the 1997 

8-hour ozone standard for Cherokee 

County as a revision to the South 

Carolina State Implementation Plan 

(SIP). In EPA’s direct final rule, there 

was an inadvertent error in the format 

of the Cherokee County entry in table (e) 

which contains South Carolina’s NonRegulatory Provision in the Code of 

Federal Regulations. This action 

corrects that formatting error. 

DATES: This action is effective January 

25, 2010. 

ADDRESSES: Copies of the 

documentation used in the action being 

corrected are available for inspection 

during normal business hours at the 

following location: U.S. Environmental 

Protection Agency, Region 4, 61 Forsyth 

Street, SW., Atlanta, Georgia 30303– 

8960. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: Zuri 

Farngalo, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street, 

SW., Atlanta, Georgia 30303–8960. Mr. 

Farngalo’s telephone number is 404– 

562–9152. He can also be reached via 

electronic mail at 

farngalo.zuri@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA is 

making a correction to the Cherokee 

County CAA 110(a)(1) Maintenance 

Plan entry that appears in table (e), of 

the South Carolina Non-Regulatory 

provisions section at 40 CFR 52.2120(e). 

This revision to South Carolina’s SIP 

was published in the Federal Register 

on June 1, 2009 (74 FR 26099), effective 

August 1, 2009. However, when the 

direct final rule approving this SIP 

revision was published, table (e) did not 

include the correct table format. EPA is 

correcting this inadvertent error by 

inserting the correctly formatted table 

(e) into South Carolina’s Identification 

of Plan section of the Code of Federal 

Regulations at 40 CFR 52.2120(e). 

EPA has determined that today’s 

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 where public notice 

and comment procedures are 

impracticable, unnecessary, or contrary 

to the public interest. Public notice and 

comment for this action are unnecessary 

because today’s action to correct a 

formatting error in the Code of Federal 

Regulations has no substantive impact 

on EPA’s June 1, 2009, approval of this 

regulation. The incorrectly formatted 

text in table (e) in EPA’s final rule 

published on June 1, 2009, makes no 

substantive difference to EPA’s analysis 

as set out in that rule. In addition, EPA 

can identify no particular reason why 

the public would be interested in being 

notified of the correction of this 

revision, or in having the opportunity to 

comment on the formatting correction 

prior to this action being finalized, since 

this formatting correction action does 

not change the meaning of the 

regulation at issue or otherwise change 

EPA’s analysis of South Carolina’s 

submittal (74 FR 26099). EPA also finds 

that there is good cause under APA 

section 553(d)(3) for this formatting 

correction to become effective on the 

date of publication of this action. 

Section 553(d)(3) of the APA allows an 

effective date less than 30 days after 

publication ‘‘as otherwise provided by 

the agency for good cause found and 

published with the rule.’’ 5 U.S.C. 

553(d)(3). The purpose of the 30-day 

waiting period prescribed in APA 

section 553(d)(3) is to give affected 

parties a reasonable time to adjust their 

behavior and prepare before the final 

rule takes effect. Today’s rule, however, 

does not create any new regulatory 

requirements such that affected parties 

would need time to prepare before the 

rule takes effect. Rather, today’s rule 

merely corrects an inadvertent error of 

omission in the regulatory text of a prior 

rule by adding a correctly formatted 

table (e) for the South Carolina 

regulation which EPA approved on June 

1, 2009. For these reasons, EPA finds 

good cause under APA section 553(d)(3) 

for this correction to become effective 

on the date of publication of this action. 

Statutory and Executive Order Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations 

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 action 

merely approves state law as meeting 

Federal requirements and 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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• 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); 


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