Federal Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules and Regulations 45695 

1The types of eligible services consist of 

subscription, nonsubscription, satellite digital 

audio radio services, and business establishment 

services. 2Until that time, interim regulations were in 

effect. See 71 FR 59010 (October 6, 2006). 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves the establishment of a 

temporary safety zone to protect the 

public from dangers associated with 

fireworks display. An environmental 

analysis checklist and a categorical 

exclusion determination are available in 

the docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. A new temporary zone § 165.T11– 

431 to read as follows: 

§ 165.T11–431; Safety zone; San Diego 

POPS Fireworks, San Diego, CA. 

(a) Location. The limits of the safety 

zone will be a 400-foot radius around 

the anchored firing barge in 

approximate position 32°42.13′ N, 

117°10.01′ W. 

(b) Enforcement Period. This section 

will be enforced from 9 p.m. to 10 p.m. 

on the following dates: July 1–3, July 8– 

9, July 15–16, July 22–23, July 29–30, 

August 5–6, August 12–13, August 19– 

20, August 26–27, and September 2–4, 

2011. 

(c) Definitions. The following 

definition applies to this section: 

designated representative means any 

commissioned, warrant, or petty officer 

of the Coast Guard on board a Coast 

Guard, Coast Guard Auxiliary, or local, 

state, or federal law enforcement vessel 

who has been authorized to act on the 

behalf of the Captain of the Port. 

(d) Regulations. (1) Entry into, transit 

through or anchoring within this safety 

zone is prohibited unless authorized by 

the Captain of the Port of San Diego or 

his designated representative on scene. 

(2) Mariners requesting permission to 

transit through the safety zone may 

request authorization to do so from the 

Sector San Diego Command Center. The 

Command Center may be contacted on 

VHF–FM Channel 16. 

(3) All persons and vessels shall 

comply with the instructions of the 

Coast Guard Captain of the Port or his 

designated representative. Upon being 

hailed by U.S. Coast Guard patrol 

personnel by siren, radio, flashing light, 

or other means, the operator of a vessel 

shall proceed as directed. 

(4) The Coast Guard may be assisted 

by other federal, state, or local agencies. 

Dated: June 27, 2011. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. 2011–19321 Filed 7–29–11; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Parts 370 and 382 

[Docket No. RM 2011–5] 

Notice and Recordkeeping for Use of 

Sound Recordings Under Statutory 

License 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Royalty Judges 

are amending their regulations to 

authorize the use of proxy reports of use 

to permit distribution of royalties 

collected for the period April 1, 2004, 

through December 31, 2009, for the 

public performance of sound recordings 

by means of digital audio transmissions 

pursuant to statutory license. Proxy 

reports of use will be used for those 

services for which no reports of use 

were submitted or for which the reports 

of use were unusable. 

DATES: Effective Date: August 31, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Richard Strasser, Senior Attorney, or 

Gina Giuffreda, Attorney Advisor, by 

telephone at (202) 707–7658 or e-mail at 

crb@loc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Sections 112 and 114 of the Copyright 

Act, title 17 of the United States Code, 

are the statutory licenses governing the 

public performance of sound recordings 

by certain types of eligible services 1 by 

means of a digital audio transmission. 

17 U.S.C. 112(e), 114. Services operating 

under these licenses are required to, 

among other things, pay royalty fees and 

report to copyright owners of sound 

recordings on the use of their works. Id. 

The Copyright Act directs the Copyright 

Royalty Judges (‘‘Judges’’) to determine 

the royalty rates to be paid, 17 U.S.C. 

114(f)(1)(A), (f)(2)(A) and 17 U.S.C. 

112(e)(3), and to establish regulations to 

give copyright owners reasonable notice 

of the use of their works and create and 

maintain records of use for delivery to 

copyright owners. 17 U.S.C. 114(f)(4)(A) 

and 17 U.S.C. 112(e)(4). The purpose of 

the notice and recordkeeping 

requirement is to ensure that the 

royalties collected under the statutory 

licenses are distributed by a central 

source—a Collective—or other agents 

designated to receive royalties from the 

Collective to the correct recipients. The 

Judges promulgated final notice and 

recordkeeping regulations on October 

13, 2009.2 See 74 FR 52418. 

On March 24, 2011, SoundExchange, 

Inc., the entity designated by the Judges 

as the Collective, petitioned the Judges 

to commence a rulemaking proceeding 

to consider adopting regulations to 

authorize SoundExchange ‘‘to use proxy 

reporting data to distribute to copyright 

owners and performers certain sound 

recording royalties for periods before 

2010 that are otherwise undistributable 

due to licensees’ failure to provide 

reports of use’’ or their provision of 

‘‘reports of use that are so deficient as 

to be unusable.’’ Petition of 

SoundExchange, Inc., for a Rulemaking 

to Authorize Use of a Proxy to Distribute 

Certain Pre-2010 Sound Recordings at 1 

and 2 (March 24, 2011). The proxy 

proposed by SoundExchange uses 

‘‘available data for services of the same 

license type, for the same year.’’ Id at 9. 

SoundExchange stated that the proxy 

would be used to distribute $28 million 

in royalties, which represents 4.5% of 

all the royalties collected for the 

relevant timeframe—April 1, 2004, 

through December 31, 2009. Id. at 2. In 


emcdonald on DSK2BSOYB1PROD with RULES
45696 Federal Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules and Regulations 

3Prior to May 31, 2005, the statutory licenses 

were administered by the Copyright Office under 

the Copyright Arbitration Royalty Panel (‘‘CARP’’) 

system. The Copyright Royalty and Distribution 

Reform Act of 2004, Public Law 108–419, 118 Stat. 

234, replaced the CARP system with the Copyright 

Royalty Judges. 

support of its request, SoundExchange 

noted that a proxy had been utilized 

once before when the lack of reports of 

use rendered the reasonable distribution 

of royalties difficult if not impossible. 

Id. at 3. In that instance, reporting data 

did not exist for the period from when 

the statutory licenses first became 

available for services other than 

preexisting subscription services 

(October 1998) to the promulgation of 

interim notice and recordkeeping 

regulations (March 2004).3 See Notice 

and Recordkeeping for Use of Sound 

Recordings Under Statutory License, 

Docket No. RM 2002–1G, Final rule, 69 

FR 58241. There the proxy data was 

used to distribute 100% of the royalties 

collected for that time period. Id. 

On April 19, 2011, the Judges 

published a notice of proposed 

rulemaking (‘‘NPRM’’) seeking comment 

on SoundExchange’s proposal. 76 FR 

21833. In addition to soliciting 

comments on the proposal, the Judges 

invited comment on, among other 

things, the reasonableness, fairness and 

appropriateness of the use of the 

proposed proxy and sought comment on 

possible alternatives to the proposed 

proxy. Id. at 21834–35 (April 19, 2011). 

Comments were due May 19, 2011. 

The Judges received a single comment 

from SoundExchange in response to the 

NPRM. SoundExchange noted that since 

the filing of its petition, additional 

reports of use had been provided 

allowing a further distribution of 

royalties, thereby reducing the amount 

of undistributable royalties to $19.4 

million, or about 3% of the total 

royalties collected for the April 1, 2004, 

to December 31, 2009, period. 

Comments of SoundExchange, Inc. at 1. 

In response to the questions posed in 

the NPRM, SoundExchange reiterated 

that the proposed proxy would be 

applied to a much smaller percentage of 

royalties than the one the Copyright 

Office approved for the October 1998 to 

March 2004 period. See e.g., id. at 4, 5. 

SoundExchange also recounted its 

efforts in arriving at the proposed proxy 

and noted that it ‘‘has not devised any 

alternative that would be demonstrably 

more fair.’’ Id. at 5. 

Given that the proxy will be applied 

to a small percentage of royalties for the 

relevant time period and that no viable 

alternatives have been provided, the 

Judges are adopting as final the 

proposed regulations as set forth in the 

NPRM allowing for the use of the proxy 

proposed by SoundExchange for the 

distribution of royalties for the period of 

April1, 2004, through December 31, 

2009. Adoption of the proposed 

regulations, especially in the absence of 

opposition to the proposed proxy, will 

promote the expeditious distribution of 

the affected royalties. 

The Judges also are adopting as final 

the technical corrections to part 382 

proposed by SoundExchange as set forth 

in the NPRM reflecting the renumbering 

of certain sections in part 370 resulting 

from the Judges’ adoption of final notice 

and recordkeeping regulations in 

October 2009. 

List of Subjects 

37 CFR Part 370 

Copyright, Sound recordings. 

37 CFR Part 382 

Copyright, Digital audio 

transmissions, Performance right, Sound 

recordings. 

Final Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

amend 37 CFR parts 370 and 382 as 

follows: 

PART 370—NOTICE AND 

RECORDKEEPING REQUIREMENTS 

FOR STATUTORY LICENSES 

■ 1. The authority citation for part 370 

continues to read as follows: 

Authority: 17 U.S.C. 112(e)(4), 

114(f)(4)(A). 

■ 2. Section 370.3 is amended by adding 

new paragraph (i) to read as follows: 

§ 370.3 Reports of use of sound 

recordings under statutory license for 

preexisting subscription services. 

* * * * * 

(i) In any case in which a preexisting 

subscription service has not provided a 

report of use required under this section 

for use of sound recordings under 

section 112(e) or section 114 of title 17 

of the United States Code, or both, prior 

to January 1, 2010, reports of use for the 

corresponding calendar year filed by 

other preexisting subscription services 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

■ 3. Section 370.4 is amended by adding 

new paragraph (f) to read as follows: 

§ 370.4 Reports of use of sound 

recordings under statutory license for 

nonsubscription transmission services, 

preexisting satellite digital audio radio 

services, new subscription services and 

business establishment services. 

* * * * * 

(f) In any case in which a 

nonsubscription transmission service, 

preexisting satellite digital audio radio 

service, new subscription service, or 

business establishment service has not 

provided a report of use required under 

this section for use of sound recordings 

under section 112(e) or section 114 of 

title 17 of the United States Code, or 

both, prior to January 1, 2010, reports of 

use for the corresponding calendar year 

filed by other services of the same type 

shall serve as the reports of use for the 

non-reporting service, solely for 

purposes of distribution of any 

corresponding royalties by the 

Collective. 

PART 382—RATES AND TERMS FOR 

DIGITAL TRANSMISSIONS OF SOUND 

RECORDINGS AND THE 

REPRODUCTION OF EPHEMERAL 

RECORDINGS BY PREEXISTING 

SUBSCRIPTION SERVICES AND 

PREEXISTING SATELLITE DIGITAL 

AUDIO RADIO SERVICES 

■ 4. The authority citation of part 382 

continues to read as follows: 

Authority: 17 U.S.C. 112(e), 114, and 

801(b)(1). 

§ 382.3 [Amended] 

■ 5. Section 382.3(c)(1) is amended by 

removing ‘‘§ 370.2’’ and adding 

‘‘§ 370.3’’ in its place. 

§ 382.13 [Amended] 

■ 6. Section 382.13(f)(1) is amended by 

removing ‘‘§ 370.3’’ and adding 

‘‘§ 370.4’’ in its place. 

Dated: July 14, 2011. 

James Scott Sledge, 

Chief U.S. Copyright Royalty Judge. 

Approved by: 

James H. Billington, 

Librarian of Congress. 

[FR Doc. 2011–19306 Filed 7–29–11; 8:45 am] 

BILLING CODE 1410–72–P 


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