15958 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 

• 405 KAR 8:010. General provisions 

for permits: This regulation has been 

amended to provide that permittees 

shall submit a minor revision 

application for the purpose of providing 

a full-cost reclamation bonding estimate 

to the cabinet. This was done to provide 

the Division of Mine Permits 30 working 

days after the notice of administrative 

completeness to review full-cost 

bonding revisions. The original 

provisions allowed for 15 working days. 

The full text of the program 

amendment is available for you to read 

at the locations listed above under 

ADDRESSES or at www.regulations.gov. 

III. Public Comment Procedures 

Under the provisions of 30 CFR 

732.17(h), we are seeking your 

comments on whether the amendment 

satisfies the applicable program 

approval criteria of 30 CFR 732.15. If we 

approve the amendment, it will become 

part of the State program. As mentioned 

earlier, if you submitted comments on 

the first submission during the public 

comment period (79 FR 11796) you do 

not need to resubmit them, we will be 

considering these comments in our 

analysis of the total submission. 

Electric or Written Comments 

If you submit written or electronic 

comments on the proposed rule during 

the 30-day comment period, they should 

be specific, confined to issues pertinent 

to the proposed regulations, and explain 

the reason for any recommended 

change(s). We appreciate any and all 

comments, but those most useful and 

likely to influence decisions on the final 

regulations will be those that either 

involve personal experience or include 

citations to and analyses of SMCRA, its 

legislative history, its implementing 

regulations, case law, other pertinent 

State or Federal laws or regulations, 

technical literature, or other relevant 

publications. 

We cannot ensure that comments 

received after the close of the comment 

period (see DATES) or sent to an address 

other than those listed (see ADDRESSES) 

will be included in the docket for this 

rulemaking and considered. 

Public Availability of Comments 

Before including your address, phone 

number, email address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment including your 

personal identifying information, may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

Public Hearing 

If you wish to speak at a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT by 

4:00 p.m., EST), on April 10, 2015. If 

you are disabled and need reasonable 

accommodation to attend a public 

hearing, contact the person listed under 

FOR FURTHER INFORMATION CONTACT. We 

will arrange the location and time of the 

hearing with those persons requesting 

the hearing. If no one requests an 

opportunity to speak, we will not hold 

a hearing. 

To assist the transcriber and ensure an 

accurate record, we request, if possible, 

that each person who speaks at the 

public hearing provide us with a written 

copy of his or her comments. The public 

hearing will continue on the specified 

date until everyone scheduled to speak 

has been given an opportunity to be 

heard. If you are in the audience and 

have not been scheduled to speak and 

wish to do so, you will be allowed to 

speak after those who have been 

scheduled. We will end the hearing after 

everyone scheduled to speak and others 

present in the audience who wish to 

speak, have been heard. 

Public Meeting 

If there is only limited interest in 

having an opportunity to speak, we may 

hold a public meeting rather than a 

public hearing. If you wish to meet with 

us to discuss the amendment, please 

request a meeting by contacting the 

person listed under FOR FURTHER

INFORMATION CONTACT. All such meetings 

are open to the public and, if possible, 

we will post notices of meetings at the 

locations listed under ADDRESSES. We 

will make a written summary of each 

meeting a part of the administrative 

record. 

IV. Procedural Determinations 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempt from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866. 

Other Laws and Executive Orders 

Affecting Rulemaking 

When a State submits a program 

amendment to OSMRE for review, our 

regulations at 30 CFR 732.17(h) require 

us to publish a notice in the Federal 

Register indicating receipt of the 

proposed amendment, its text or a 

summary of its terms, and an 

opportunity for public comment. We 

conclude our review of the proposed 

amendment after the close of the public 

comment period and determine whether 

the amendment should be approved, 

approved in part, or not approved. At 

that time, we will also make the 

determinations and certifications 

required by the various laws and 

executive orders governing the 

rulemaking process and include them in 

the final rule. 

List of Subjects in 30 CFR Part 917 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: December 29, 2014. 

David G. Hartos, 

Deputy Regional Director, Appalachian 

Region. 

[FR Doc. 2015–06962 Filed 3–25–15; 8:45 am] 

BILLING CODE 4310–05–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 380 

[Docket No. 2014–CRB–0001–WR (2016– 

2020) (Web IV)] 

Digital Performance Right in Sound 

Recordings and Ephemeral 

Recordings 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Proposed rule. 

SUMMARY: The Copyright Royalty Judges 

are publishing for comment proposed 

regulations governing the rates and 

terms for the digital performances of 

sound recordings by certain public radio 

stations and for the making of 

ephemeral recordings necessary to 

facilitate those transmissions for the 

period commencing January 1, 2016, 

and ending on December 31, 2020. 

DATES: Comments and objections, if any, 

are due no later than April 16, 2015. 

ADDRESSES: The proposed rule is posted 

on the agency’s Web site (www.loc.gov/ 

crb). Submit electronic comments 

online at http://www.regulations.gov or 

via email to crb@loc.gov. Those who 

choose not to submit comments 

electronically should see How to Submit 

Comments in the SUPPLEMENTARY

INFORMATION section below for physical 

addresses and further instructions. 

FOR FURTHER INFORMATION CONTACT: 

Kimberly Whittle, Attorney Advisor, by 

telephone at (202) 707–7658, or by 

email at crb@loc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 24, 2015, the Copyright 

Royalty Judges (Judges) received a joint 

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Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 15959 

1Web IV is short for Webcasting IV. This 

proceeding is the fourth since Congress enacted the 

compulsory sound recording performance license 

for webcasting. 

2The following ten parties have withdrawn their 

Petitions to Participate: 8tracks, Inc.; Amazon.com, 

Inc.; CMN, Inc.; CustomChannels.net, LLC; Digitally 

Imported, Inc.; Feed Media, Inc.; idobi Network; 

Rhapsody International, Inc.; SomaFM.com LLC; 

and Spotify USA Inc. Three parties, Music Reports, 

Inc., NMPA, and Triton Digital, Inc., have been 

dismissed from the proceeding. 

motion from SoundExchange, Inc., 

National Public Radio, Inc., and the 

Corporation for Public Broadcasting to 

adopt a partial settlement of their 

interests and those of American Public 

Media, Public Radio International, 

Public Radio Exchange, and other 

unnamed public radio stations (together, 

the Settling Parties) regarding Web IV 

rates and terms for 2016–2020.1 Joint 

Motion to Adopt Partial Settlement, 

Docket No. 2014–CRB–0001–WR (2016– 

2020). Their interests concern the rule 

setting minimum copyright royalty fees 

and terms that the Judges will establish 

for compulsory copyright licenses for 

certain internet transmissions of sound 

recordings by public radio stations for 

the period from January 1, 2016, 

through December 31, 2020. 

SoundExchange, Inc. represents sound 

recording copyright owners and 

performers. The Settling Parties are 

users of the copyrighted material 

including public radio stations. The 

Judges hereby publish the proposed 

settlement and request comments from 

the public. 

Section 114 of the Copyright Act, title 

17 of the United States Code, provides 

a statutory license that allows for the 

public performance of sound recordings 

by means of a digital audio transmission 

by, among others, eligible 

nonsubscription transmission services. 

17 U.S.C. 114(f). For purposes of the 

section 114 license, an ‘‘eligible 

nonsubscription transmission’’ is a 

noninteractive digital audio 

transmission that does not require a 

subscription for receiving the 

transmission. The transmission must 

also be made as part of a service that 

provides audio programming consisting 

in whole or in part of performances of 

sound recordings the purpose of which 

is to provide audio or other 

entertainment programming, but not to 

sell, advertise, or promote particular 

goods or services. See 17 U.S.C. 

114(j)(6). 

Services using the section 114 license 

may need to make one or more 

temporary or ‘‘ephemeral’’ copies of a 

sound recording in order to facilitate the 

transmission of that recording. The 

section 112 statutory license allows for 

the making of the necessary ephemeral 

reproductions. 17 U.S.C. 112(e). 

Chapter 8 of the Copyright Act 

requires the Judges to conduct 

proceedings every five years to 

determine the rates and terms for the 

sections 114 and 112 statutory licenses. 

17 U.S.C. 801(b)(1), 804(b)(3)(A). The 

current proceeding commenced in 

January 2014 for rates and terms that 

will become effective on January 1, 

2016, and end on December 31, 2020. 

Pursuant to section 804(b)(3)(A), the 

Judges published in the Federal 

Register a notice commencing the 

proceeding and requesting that 

interested parties submit their petitions 

to participate. 79 FR 412 (January 3, 

2014). The following parties submitted 

Petitions to Participate: 8tracks, Inc.; 

AccuRadio, LLC; Amazon.com, Inc.; 

Apple Inc; Beats Music, LLC; Clear 

Channel; CMN, Inc.; College 

Broadcasters, Inc. (CBI); 

CustomChannels.net, LLC; Digital 

Media Association (DiMA); Digitally 

Imported, Inc.; Educational Media 

Foundation; Feed Media, Inc.; Geo 

Music Group; Harvard Radio 

Broadcasting Inc. (WHRB); idobi 

Network; Intercollegiate Broadcasting 

System, Inc. (IBS); Music Reports, Inc.; 

National Association of Broadcasters 

(NAB); National Music Publishers 

Association (NMPA); National Public 

Radio (NPR); National Religious 

Broadcasters Noncommercial Music 

License Committee (NRBNMLC); 

Pandora Media Inc.; Rhapsody 

International, Inc.; Sirius XM Radio Inc.; 

SomaFM.com LLC; SoundExchange, 

Inc. (SX); Spotify USA Inc.; and Triton.2

The Judges set the timetable for the 

three-month negotiation period for 

February 21, 2014, through May 22, 

2014. See 17 U.S.C. 803(b)(3). The 

Judges set December 22, 2014, as the 

deadline by which participants were to 

submit amended written direct 

statements. On February 24, 2015, 

SoundExchange and the Settling Parties 

submitted to the Judges a joint motion 

to adopt a partial settlement of their 

interests in the proceeding. The parties 

requested that the Judges make their 

decision on the motion expeditiously, as 

the hearings in this rate proceeding are 

scheduled to commence on April 27, 

2015. 

Statutory Timing of Adoption of Rates 

and Terms 

Section 801(b)(7)(A) allows for the 

adoption of rates and terms negotiated 

by ‘‘some or all of the participants in a 

proceeding at any time during the 

proceeding’’ provided the parties submit 

the negotiated rates and terms to the 

Judges for approval. That provision 

directs the Judges to provide those who 

would be bound by the negotiated rates 

and terms an opportunity to comment 

on the agreement. Unless a participant 

in a proceeding objects and the Judges 

conclude that the agreement does not 

provide a reasonable basis for setting 

statutory rates or terms, the Judges 

adopt the negotiated rates and terms. 17 

U.S.C. 801(b)(7)(A). 

If the Judges adopt the proposed rates 

and terms pursuant to this provision for 

the 2016–2020 rate period, the adopted 

rates and terms shall be binding on all 

copyright owners of sound recordings, 

NPR, American Public Media, Public 

Radio International, and Public Radio 

Exchange, and up to 530 public radio 

stations to be named by CPB that 

perform sound recordings during the 

license period 2016–2020. 

Proposed Adjustments to Rates and 

Terms 

In the proposed settlement, 

SoundExchange and the Settling Parties 

request that the Judges adopt the rates 

and terms for public radio as a new 

‘‘Subpart D’’ to part 380, 37 CFR. Under 

the proposal, the parties would continue 

the rate structure in place for public 

radio, while increasing the fee amount. 

Joint Motion to Adopt Partial Settlement 

at 3. The proposal also contemplates 

retention of largely unchanged 

recordkeeping and reporting terms, by 

which affected entities take advantage of 

a consolidated report of usage prepared 

by and submitted through the 

Corporation for Public Broadcasting. Id. 

The public may comment and object 

to any or all of the proposed regulations 

contained in this notice. Such 

comments and objections must be 

submitted no later than April 16, 2015. 

How To Submit Comments 

Interested members of the public must 

submit comments to only one of the 

following addresses. If not commenting 

by email or online, commenters must 

submit an original of their comments, 

five paper copies, and an electronic 

version on a CD. 

Email: crb@loc.gov; or 

Online: http://www.regulations.gov; or 

U.S. mail: Copyright Royalty Board, 

P.O. Box 70977, Washington, DC 20024– 

0977; or 

Overnight service (only USPS Express 

Mail is acceptable): Copyright Royalty 

Board, P.O. Box 70977, Washington, DC 

20024–0977; or 

Commercial courier: Address package 

to: Copyright Royalty Board, Library of 

Congress, James Madison Memorial 

Building, LM–403, 101 Independence 

Avenue SE., Washington, DC 20559– 

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15960 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 

6000. Deliver to: Congressional Courier 

Acceptance Site, 2nd Street NE. and D 

Street NE., Washington, DC; or 

Hand delivery: Library of Congress, 

James Madison Memorial Building, LM– 

401, 101 Independence Avenue SE., 

Washington, DC 20559–6000. 

List of Subjects in 37 CFR Part 380 

Copyright, Sound recordings, 

Webcasters. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

propose to amend 37 CFR part 380 as 

follows: 

PART 380—RATES AND TERMS FOR 

CERTAIN ELIGIBLE 

NONSUBSCRIPTION TRANSMISSIONS, 

NEW SUBSCRIPTION SERVICES AND 

THE MAKING OF EPHEMERAL 

REPRODUCTIONS 

■ 1. The authority citation for part 380 

continues to read as follows: 

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

804(b)(3). 

■ 2. Add Subpart D to part 380 to read 

as follows: 

■ 3. 

Subpart D—Certain Transmissions by 

Public Broadcasting Entities 

Sec. 

380.30 General. 

380.31 Definitions. 

380.32 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

380.33 Terms for making payment of 

royalty fees and statements of account. 

380.34 Confidential Information. 

380.35 Verification of royalty payments. 

380.36 Verification of royalty distributions. 

380.37 Unclaimed funds. 

Subpart D—Certain Transmissions by 

Public Broadcasting Entities 

§ 380.30 General. 

(a) Scope. This subpart establishes 

rates and terms of royalty payments for 

the public performance of sound 

recordings in certain digital 

transmissions, through Authorized Web 

sites, by means of Web site 

Performances, by certain Covered 

Entities as set forth in this subpart in 

accordance with the provisions of 17 

U.S.C. 114, and the making of 

ephemeral recordings by Covered 

Entities in accordance with the 

provisions of 17 U.S.C. 112(e) solely as 

necessary to encode Sound Recordings 

in different formats and at different bit 

rates as necessary to facilitate Web site 

Performances, during the period January 

1, 2016, through December 31, 2020. 

The provisions of this subpart shall 

apply to the Covered Entities in lieu of 

other rates and terms applicable under 

17 U.S.C. 112(e) and 114. 

(b) Legal compliance. Licensees 

relying upon the statutory licenses set 

forth in 17 U.S.C. 112(e) and 114 shall 

comply with the requirements of those 

sections, the rates and terms of this 

subpart, and any other applicable 

regulations. 

(c) Relationship to voluntary 

agreements. Notwithstanding the 

royalty rates and terms established in 

this subpart, the rates and terms of any 

license agreements entered into by 

Copyright Owners and Licensees shall 

apply in lieu of the rates and terms of 

this subpart to transmission within the 

scope of such agreements. 

§ 380.31 Definitions. 

For purposes of this subpart, the 

following definitions shall apply: 

Aggregate Tuning Hours (ATH) means 

the total hours of programming that 

Covered Entities have transmitted 

during the relevant period to all 

listeners within the United States from 

all Covered Entities that provide audio 

programming consisting, in whole or in 

part, of Web site Performances, less the 

actual running time of any sound 

recordings for which the Covered Entity 

has obtained direct licenses apart from 

this Agreement. By way of example, if 

a Covered Entity transmitted one hour 

of programming to ten (10) 

simultaneous listeners, the Covered 

Entity’s Aggregate Tuning Hours would 

equal ten (10). If three (3) minutes of 

that hour consisted of transmission of a 

directly licensed recording, the Covered 

Entity’s Aggregate Tuning Hours would 

equal nine (9) hours and thirty (30) 

minutes. As an additional example, if 

one listener listened to a Covered Entity 

for ten (10) hours (and none of the 

recordings transmitted during that time 

was directly licensed), the Covered 

Entity’s Aggregate Tuning Hours would 

equal 10. 

Authorized Web site is any Web site 

operated by or on behalf of any Covered 

Entity that is accessed by Web site Users 

through a Uniform Resource Locator 

(‘‘URL’’) owned by such Covered Entity 

and through which Web site 

Performances are made by such Covered 

Entity. 

CPB is the Corporation for Public 

Broadcasting. 

Collective is the collection and 

distribution organization that is 

designated by the Copyright Royalty 

Judges. For the 2016–2020 license 

period, the Collective is 

SoundExchange, Inc. 

Copyright Owners are Sound 

Recording copyright owners who are 

entitled to royalty payments made 

under this subpart pursuant to the 

statutory licenses under 17 U.S.C. 112(e) 

and 114(f). 

Covered Entities are NPR, American 

Public Media, Public Radio 

International, and Public Radio 

Exchange, and up to 530 Originating 

Public Radio Stations as named by CPB. 

CPB shall notify SoundExchange 

annually of the eligible Originating 

Public Radio Stations to be considered 

Covered Entities hereunder (subject to 

the numerical limitations set forth 

herein). The number of Originating 

Public Radio Stations treated hereunder 

as Covered Entities shall not exceed 530 

for a given year without 

SoundExchange’s express written 

approval, except that CPB shall have the 

option to increase the number of 

Originating Public Radio Stations that 

may be considered Covered Entities as 

provided in § 380.32(c). 

Ephemeral Phonorecords are 

Phonorecords of all or any portion of 

any Sound Recordings; provided that: 

(1) Such Phonorecords are limited 

solely to those necessary to encode 

Sound Recordings in different formats 

and at different bit rates as necessary to 

facilitate Web site Performances covered 

by this subpart; 

(2) Such Phonorecords are made in 

strict conformity with the provisions set 

forth in 17 U.S.C. 112(e)(1)(A) through 

(D), and 

(3) The Covered Entities comply with 

17 U.S.C. 112(a) and (e) and all of the 

terms and conditions of this Agreement. 

Music ATH is ATH of Web site 

Performances of Sound Recordings of 

musical works. 

NPR is National Public Radio, Inc. 

Originating Public Radio Station is a 

noncommercial terrestrial radio 

broadcast station that: 

(1) Is licensed as such by the Federal 

Communications Commission; 

(2) Originates programming and is not 

solely a repeater station; 

(3) Is a member or affiliate of NPR, 

American Public Media, Public Radio 

International, or Public Radio Exchange, 

a member of the National Federation of 

Community Broadcasters, or another 

public radio station that is qualified to 

receive funding from CPB pursuant to 

its criteria; 

(4) Qualifies as a ‘‘noncommercial 

webcaster’’ under 17 U.S.C. 

114(f)(5)(E)(i); and 

(5) Either: 

(i) Offers Web site Performances only 

as part of the mission that entitles it to 

be exempt from taxation under section 

501 of the Internal Revenue Code of 

1986 (26 U.S.C. 501); or 

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Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 15961 

(ii) In the case of a governmental 

entity (including a Native American 

Tribal governmental entity), is operated 

exclusively for public purposes. 

Performers means the independent 

administrators identified in 17 U.S.C. 

114(g)(2)(B) and (C) and the individuals 

and entities identified in 17 U.S.C. 

114(g)(2)(D). 

Person is a natural person, a 

corporation, a limited liability company, 

a partnership, a trust, a joint venture, 

any governmental authority or any other 

entity or organization. 

Phonorecords have the meaning set 

forth in 17 U.S.C. 101. 

Qualified Auditor is a Certified Public 

Accountant, or a person, who by virtue 

of education or experience, is 

appropriately qualified to perform an 

audit to verify royalty payments related 

to performances of sound recordings. 

Side Channel is any Internet-only 

program available on an Authorized 

Web site or an archived program on 

such Authorized Web site that, in either 

case, conforms to all applicable 

requirements under 17 U.S.C. 114. 

Sound Recording has the meaning set 

forth in 17 U.S.C. 101. 

Term is the period January 1, 2016, 

through December 31, 2020. 

Web site is a site located on the World 

Wide Web that can be located by a Web 

site User through a principal URL. 

Web site Performances (1) Are all 

public performances by means of digital 

audio transmissions of Sound 

Recordings, including the transmission 

of any portion of any Sound Recording, 

made through an Authorized Web site 

in accordance with all requirements of 

17 U.S.C. 114, from servers used by a 

Covered Entity (provided that the 

Covered Entity controls the content of 

all materials transmitted by the server), 

or by a contractor authorized pursuant 

to Section 380.32(f), that consist of 

either: 

(i) The retransmission of a Covered 

Entity’s over-the-air terrestrial radio 

programming; or 

(ii) The digital transmission of 

nonsubscription Side Channels that are 

programmed and controlled by the 

Covered Entity. 

(2) This term does not include digital 

audio transmissions made by any other 

means. 

Web site Users are all those who 

access or receive Web site Performances 

or who access any Authorized Web site. 

§ 380.32 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

(a) Royalty rates. The total license fee 

for all Web site Performances by 

Covered Entities during the Term, up to 

a total Music ATH of 285,132,065 per 

calendar year, and Ephemeral 

Phonorecords made by Covered Entities 

solely to facilitate such Web site 

Performances, during the Term shall be 

$2,800,000 (the ‘‘License Fee’’), unless 

additional payments are required as 

described in paragraph (c) of this 

section. 

(b) Calculation of License Fee. It is 

understood that the License Fee 

includes: 

(1) An annual minimum fee of $500 

for each Covered Entity for each year 

during the Term; 

(2) Additional usage fees for certain 

Covered Entities; and 

(3) A discount that reflects the 

administrative convenience to the 

Collective of receiving annual lump sum 

payments that cover a large number of 

separate entities, as well as the 

protection from bad debt that arises 

from being paid in advance. 

(c) Increase in Covered Entities. If the 

total number of Originating Public 

Radio Stations that wish to make Web 

site Performances in any calendar year 

exceeds the number of such Originating 

Public Radio Stations considered 

Covered Entities in the relevant year, 

and the excess Originating Public Radio 

Stations do not wish to pay royalties for 

such Web site Performances apart from 

this subpart, CPB may elect by written 

notice to the Collective to increase the 

number of Originating Public Radio 

Stations considered Covered Entities in 

the relevant year effective as of the date 

of the notice. To the extent of any such 

elections, CPB shall make an additional 

payment to the Collective for each 

calendar year or part thereof it elects to 

have an additional Originating Public 

Radio Station considered a Covered 

Entity, in the amount of $500 per 

Originating Public Radio Station per 

year. Such payment shall accompany 

the notice electing to have an additional 

Originating Public Radio Station 

considered a Covered Entity. 

(d) Ephemeral recordings. The royalty 

payable under 17 U.S.C. 112(e) for the 

making of all ephemeral recordings used 

by Covered Entities solely to facilitate 

Web site Performances for which 

royalties are paid pursuant to this 

subpart shall be included within, and 

constitute 5% of, the total royalties 

payable under 17 U.S.C. 112(e) and 114. 

(e) Effect of non-performance by any 

Covered Entity. In the event that any 

Covered Entity violates any of the 

material provisions of 17 U.S.C. 112(e) 

or 114 or this subpart that it is required 

to perform, the remedies of the 

Collective shall be specific to that 

Covered Entity only, and shall include, 

without limitation, termination of that 

Covered Entity’s right to be treated as a 

Covered Entity hereunder upon written 

notice to CPB. The Collective and 

Copyright Owners also shall have 

whatever rights may be available to 

them against that Covered Entity under 

applicable law. The Collective’s 

remedies for such a breach or failure by 

an individual Covered Entity shall not 

include termination of the rights of 

other Covered Entities to be treated as 

Covered Entities hereunder, except that 

if CPB fails to pay the License Fee or 

otherwise fails to perform any of the 

material provisions of this subpart, or 

such a breach or failure by a Covered 

Entity results from CPB’s inducement, 

and CPB does not cure such breach or 

failure within 30 days after receiving 

notice thereof from the Collective, then 

the Collective may terminate the right of 

all Covered Entities to be treated as 

Covered Entities hereunder upon 

written notice to CPB. In such a case, a 

prorated portion of the License Fee for 

the remainder Term (to the extent paid 

by CPB) shall, after deduction of any 

damages payable to the Collective by 

virtue of the breach or failure, be 

credited to statutory royalty obligations 

of Covered Entities to the Collective for 

the Term as specified by CPB. 

(f) Use of contractors. The right to rely 

on this subpart is limited to Covered 

Entities, except that a Covered Entity 

may employ the services of a third 

person to provide the technical services 

and equipment necessary to deliver Web 

site Performances on behalf of such 

Covered Entity, but only through an 

Authorized Web site. Any agreement 

between a Covered Entity and any third 

person for such services shall: 

(1) Obligate such third person to 

provide all such services in accordance 

with all applicable provisions of the 

statutory licenses and this subpart, 

(2) Specify that such third person 

shall have no right to make Web site 

Performances or any other performances 

or Phonorecords on its own behalf or on 

behalf of any person or entity other than 

a Covered Entity through the Covered 

Entity’s Authorized Web site by virtue 

of its services for the Covered Entity, 

including in the case of Phonorecords, 

pre-encoding or otherwise establishing a 

library of Sound Recordings that it 

offers to a Covered Entity or others for 

purposes of making performances, but 

instead must obtain all necessary 

licenses from the Collective, the 

copyright owner or another duly 

authorized person, as the case may be; 

(3) Specify that such third person 

shall have no right to grant any 

sublicenses under the statutory licenses; 

and 

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15962 Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 

(4) Provide that the Collective is an 

intended third-party beneficiary of all 

such obligations with the right to 

enforce a breach thereof against such 

third person. 

§ 380.33 Terms for making payment of 

royalty fees and statements of account. 

(a) Payment to the Collective. CPB 

shall pay the License Fee to the 

Collective in five equal installments of 

$560,000 each, which shall be due 

December 31, 2015 and annually 

thereafter through December 31, 2019. 

(b) Designation of the Collective. (1) 

Until such time as a new designation is 

made, SoundExchange, Inc., is 

designated as the Collective to receive 

statements of account and royalty 

payments for Covered Entities under 

this subpart and to distribute such 

royalty payments to each Copyright 

Owner and Performer, or their 

designated agents, entitled to receive 

royalties under 17 U.S.C. 112(e) or 

114(g). 

(2) If SoundExchange, Inc. should 

dissolve or cease to be governed by a 

board consisting of equal numbers of 

representatives of Copyright Owners 

and Performers, then it shall be replaced 

by a successor Collective upon the 

fulfillment of the requirements set forth 

in paragraph (b)(2)(i) of this section. 

(i) By a majority vote of the nine 

Copyright Owner representatives and 

the nine Performer representatives on 

the SoundExchange board as of the last 

day preceding the condition precedent 

in this paragraph (b)(2) of this section, 

such representatives shall file a petition 

with the Copyright Royalty Judges 

designating a successor to collect and 

distribute royalty payments to Copyright 

Owners and Performers entitled to 

receive royalties under 17 U.S.C. 112(e) 

or 114(g) that have themselves 

authorized the Collective. 

(ii) The Copyright Royalty Judges 

shall publish in the Federal Register 

within 30 days of receipt of a petition 

filed under paragraph (b)(2)(i) of this 

section an order designating the 

Collective named in such petition. 

(c) Reporting. CPB and Covered 

Entities shall submit reports of use and 

other information concerning Web site 

Performances as agreed upon with the 

Collective. 

(d) Late payments and statements of 

account. A Licensee shall pay a late fee 

of 1.5% per month, or the highest lawful 

rate, whichever is lower, for any 

payment and/or statement of account 

received by the Collective after the due 

date. Late fees shall accrue from the due 

date until payment and the related 

statement of account are received by the 

Collective. 

(e) Distribution of royalties. (1) The 

Collective shall promptly distribute 

royalties received from CPB to 

Copyright Owners and Performers, or 

their designated agents, who are entitled 

to such royalties. The Collective shall 

only be responsible for making 

distributions to those Copyright 

Owners, Performers, or their designated 

agents who provide the Collective with 

such information as is necessary to 

identify the correct recipient. The 

Collective shall distribute royalties on a 

basis that values all Web site 

Performances by Covered Entities 

equally based upon the reporting 

information provided by CPB/NPR. 

(2) If the Collective is unable to locate 

a Copyright Owner or Performer entitled 

to a distribution of royalties under 

paragraph (e)(1) of the section within 3 

years from the date of payment by a 

Licensee, such royalties shall be 

handled in accordance with § 380.37. 

(f) Retention of records. Books and 

records of CPB and Covered Entities and 

of the Collective relating to payments of 

and distributions of royalties shall be 

kept for a period of not less than the 

prior 3 calendar years. 

§ 380.34 Confidential Information. 

(a) Definition. For purposes of this 

subpart, ‘‘Confidential Information’’ 

shall include the statements of account 

and any information contained therein, 

including the amount of royalty 

payments, and any information 

pertaining to the statements of account 

reasonably designated as confidential by 

the Licensee submitting the statement. 

(b) Exclusion. Confidential 

Information shall not include 

information or documents that at the 

time of delivery to the Collective are 

public knowledge, or documents or 

information that become publicly 

known through no fault of the Collective 

or are known by the Collective when 

disclosed by CPB/NPR. The party 

claiming the benefit of this provision 

shall have the burden of proving that 

the disclosed information was public 

knowledge. 

(c) Use of Confidential Information. In 

no event shall the Collective use any 

Confidential Information for any 

purpose other than royalty collection 

and distribution and activities related 

directly thereto and enforcement of the 

terms of the statutory licenses. 

(d) Disclosure of Confidential 

Information. Access to Confidential 

Information shall be limited to: 

(1) Those employees, agents, 

attorneys, consultants and independent 

contractors of the Collective, subject to 

an appropriate confidentiality 

agreement, who are engaged in the 

collection and distribution of royalty 

payments hereunder and activities 

related thereto, for the purpose of 

performing such duties during the 

ordinary course of their work and who 

require access to the Confidential 

Information; 

(2) An independent and Qualified 

Auditor, subject to an appropriate 

confidentiality agreement, who is 

authorized to act on behalf of the 

Collective with respect to verification of 

a Licensee’s statement of account 

pursuant to § 380.35 or on behalf of a 

Copyright Owner or Performer with 

respect to the verification of royalty 

distributions pursuant to § 380.36, 

(3) Copyright Owners and Performers, 

including their designated agents, 

whose works have been used under the 

statutory licenses set forth in 17 U.S.C. 

112(e) and 114 by the Licensee whose 

Confidential Information is being 

supplied, subject to an appropriate 

confidentiality agreement, and 

including those employees, agents, 

attorneys, consultants and independent 

contractors of such Copyright Owners 

and Performers and their designated 

agents, subject to an appropriate 

confidentiality agreement, for the 

purpose of performing their duties 

during the ordinary course of their work 

and who require access to the 

Confidential Information; and 

(4) In connection with future 

proceedings under 17 U.S.C. 112(e) and 

114 before the Copyright Royalty Judges, 

and under an appropriate protective 

order, attorneys, consultants and other 

authorized agents of the parties to the 

proceedings or the courts, subject to the 

provisions of any relevant agreements 

restricting the activities of CPB, Covered 

Entities or the Collective in such 

proceedings. 

(e) Safeguarding of Confidential 

Information. The Collective and any 

person identified in paragraph (d) of 

this section shall implement procedures 

to safeguard against unauthorized access 

to or dissemination of any Confidential 

Information using a reasonable standard 

of care, but no less than the same degree 

of security used to protect Confidential 

Information or similarly sensitive 

information belonging to the Collective 

or person. 

§ 380.35 Verification of royalty payments. 

(a) General. This section prescribes 

procedures by which the Collective may 

verify the royalty payments made by 

CPB. 

(b) Frequency of verification. The 

Collective may conduct a single audit of 

any Covered Entities, upon reasonable 

notice and during reasonable business 

hours, during any given calendar year, 

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Federal Register / Vol. 80, No. 58 / Thursday, March 26, 2015 / Proposed Rules 15963 

for any or all of the prior 3 calendar 

years, but no calendar year shall be 

subject to audit more than once. 

(c) Notice of intent to audit. The 

Collective must file with the Copyright 

Royalty Judges a notice of intent to audit 

CPB and Covered Entities, which shall, 

within 30 days of the filing of the 

notice, publish in the Federal Register 

a notice announcing such filing. The 

notification of intent to audit shall be 

served at the same time on CPB. Any 

such audit shall be conducted by an 

independent and Qualified Auditor 

identified in the notice, and shall be 

binding on all parties. 

(d) Acquisition and retention of 

report. CPB and Covered Entities shall 

use commercially reasonable efforts to 

obtain or to provide access to any 

relevant books and records maintained 

by third parties for the purpose of the 

audit. The Collective shall retain the 

report of the verification for a period of 

not less than 3 years. 

(e) Consultation. Before rendering a 

written report to the Collective, except 

where the auditor has a reasonable basis 

to suspect fraud and disclosure would, 

in the reasonable opinion of the auditor, 

prejudice the investigation of such 

suspected fraud, the auditor shall 

review the tentative written findings of 

the audit with the appropriate agent or 

employee of CPB in order to remedy any 

factual errors and clarify any issues 

relating to the audit; provided that an 

appropriate agent or employee of CPB 

reasonably cooperates with the auditor 

to remedy promptly any factual errors or 

clarify any issues raised by the audit. 

(f) Costs of the verification procedure. 

The Collective shall pay the cost of the 

verification procedure, unless it is 

finally determined that there was an 

underpayment of 10% or more, in 

which case CPB shall, in addition to 

paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 

§ 380.36 Verification of royalty 

distributions. 

(a) General. This section prescribes 

procedures by which any Copyright 

Owner or Performer may verify the 

royalty distributions made by the 

Collective; provided, however, that 

nothing contained in this section shall 

apply to situations where a Copyright 

Owner or Performer and the Collective 

have agreed as to proper verification 

methods. 

(b) Frequency of verification. A 

Copyright Owner or Performer may 

conduct a single audit of the Collective 

upon reasonable notice and during 

reasonable business hours, during any 

given calendar year, for any or all of the 

prior 3 calendar years, but no calendar 

year shall be subject to audit more than 

once. 

(c) Notice of intent to audit. A 

Copyright Owner or Performer must file 

with the Copyright Royalty Judges a 

notice of intent to audit the Collective, 

which shall, within 30 days of the filing 

of the notice, publish in the Federal 

Register a notice announcing such 

filing. The notification of intent to audit 

shall be served at the same time on the 

Collective. Any audit shall be 

conducted by an independent and 

Qualified Auditor identified in the 

notice, and shall be binding on all 

Copyright Owners and Performers. 

(d) Acquisition and retention of 

report. The Collective shall use 

commercially reasonable efforts to 

obtain or to provide access to any 

relevant books and records maintained 

by third parties for the purpose of the 

audit. The Copyright Owner or 

Performer requesting the verification 

procedure shall retain the report of the 

verification for a period of not less than 

3 years. 

(e) Consultation. Before rendering a 

written report to a Copyright Owner or 

Performer, except where the auditor has 

a reasonable basis to suspect fraud and 

disclosure would, in the reasonable 

opinion of the auditor, prejudice the 

investigation of such suspected fraud, 

the auditor shall review the tentative 

written findings of the audit with the 

appropriate agent or employee of the 

Collective in order to remedy any 

factual errors and clarify any issues 

relating to the audit; Provided that the 

appropriate agent or employee of the 

Collective reasonably cooperates with 

the auditor to remedy promptly any 

factual errors or clarify any issues raised 

by the audit. 

(f) Costs of the verification procedure. 

The Copyright Owner or Performer 

requesting the verification procedure 

shall pay the cost of the procedure, 

unless it is finally determined that there 

was an underpayment of 10% or more, 

in which case the Collective shall, in 

addition to paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 

§ 380.37 Unclaimed funds. 

If the Collective is unable to identify 

or locate a Copyright Owner or 

Performer who is entitled to receive a 

royalty distribution under this subpart, 

the Collective shall retain the required 

payment in a segregated trust account 

for a period of 3 years from the date of 

distribution. No claim to such 

distribution shall be valid after the 

expiration of the 3-year period. After 

expiration of this period, the Collective 

may apply the unclaimed funds to offset 

any costs deductible under 17 U.S.C. 

114(g)(3). The foregoing shall apply 

notwithstanding the common law or 

statutes of any State. 

Dated: March 20, 2015. 

Jesse M. Feder, 

Copyright Royalty Judge. 

[FR Doc. 2015–06896 Filed 3–25–15; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2014–0270; FRL–9925–12– 

Region 6] 

Approval and Promulgation of Air 

Quality Implementation Plans; State of 

New Mexico; Infrastructure SIP 

Requirements for the 2008 Ozone and 

2010 Nitrogen Dioxide National 

Ambient Air Quality Standards; 

Interstate Transport of Fine Particulate 

Matter Air Pollution Affecting Visibility 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

elements of a State Implementation Plan 

(SIP) submission from the State of New 

Mexico addressing the applicable 

requirements of Clean Air Act (CAA) 

section 110 for the 2008 National 

Ambient Air Quality Standards 

(NAAQS) for Ozone (O3) and the 2010 

NAAQS for Nitrogen Dioxide (NO2), 

both of which require that each state 

adopt and submit a SIP to support 

implementation, maintenance, and 

enforcement of each new or revised 

NAAQS promulgated by EPA. These 

SIPs are commonly referred to as 

‘‘infrastructure’’ SIPs. The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. EPA is 

also proposing to find that the State of 

New Mexico meets the 2006 fine 

particulate matter (PM2.5) NAAQS 

requirement pertaining to interstate 

transport of air pollution and visibility 

protection. 

DATES: Written comments must be 

received on or before April 27, 2015. 

ADDRESSES: Submit your comments, 

identified by Docket ID Number EPA– 

R06–OAR–2014–0270, by one of the 

following methods: 

• www.regulations.gov. Follow the 

online instructions. 

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