Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 68527 

1Soundtrack Your Brand Sweden AB had 

withdrawn its Petition to Participate on April 5, 

2022. 

(b) [The text of proposed § 300.11(b) 

is the same as the text of § 300.11(b) 

published elsewhere in this issue of the 

Federal Register]. 

* * * * * 

(d) [The text of proposed § 300.11(d) 

is the same as the text of § 300.11(d) 

published elsewhere in this issue of the 

Federal Register]. 

Douglas W. O’Donnell, 

Deputy Commissioner for Services and 

Enforcement. 

[FR Doc. 2023–22104 Filed 9–29–23; 4:15 pm] 

BILLING CODE 4830–01–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 384 

[Docket No. 21–CRB–0013–BER (2024– 

2028)] 

Determination of Royalty Rates and 

Terms for Making Ephemeral Copies of 

Sound Recordings for Transmission to 

Business Establishments (Business 

Establishments IV) 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Proposed rule. 

SUMMARY: The Copyright Royalty 

Judges solicit comments on proposed 

rates and terms for the making of 

ephemeral copies of sound recordings to 

facilitate digital audio transmissions of 

those sound recordings to business 

establishments pursuant to the 

limitation on exclusive rights specified 

by the Copyright Act for the period from 

January 1, 2024, through December 31, 

2028. 

DATES: Comments and objections, if any, 

are due no later than October 24, 2023. 

ADDRESSES: You may submit comments 

and objections, identified by docket 

number 21–CRB–0013–BER (2024– 

2028) online through eCRB at https://

app.crb.gov/. 

Instructions: All comments must 

include the Copyright Royalty Board 

name and the docket number for this 

proposed rule. All properly filed 

comments will appear without change 

in eCRB at https://app.crb.gov, 

including any personal information 

provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to eCRB, the 

Copyright Royalty Board’s electronic 

filing and case management system, at 

https://app.crb.gov/, and search for 

docket number 21–CRB–0013–BER 

(2024–2028). 

FOR FURTHER INFORMATION CONTACT: 

Anita Brown, CRB Program Specialist, 

(202) 707–7658, crb@loc.gov. 

SUPPLEMENTARY INFORMATION: The 

Copyright Act provides that the 

Copyright Royalty Judges (Judges) 

commence a proceeding every fifth year 

to determine royalty rates and terms for 

the recording of ephemeral copies of 

sound recordings pursuant to the 

statutory license in 17 U.S.C. 112(e)(1) 

to facilitate digital audio transmissions 

of those sound recordings to business 

establishments pursuant to the 

limitation on exclusive rights specified 

by 17 U.S.C. 114(d)(1)(C)(iv). See 17 

U.S.C. 804(b)(2). 

In accordance with section 804(b)(2), 

the Judges commenced the proceeding 

to set rates and terms for the period 

2024–2028 on January 5, 2022 (87 FR 

490). In the Federal Register notice, the 

Judges requested that interested parties 

submit petitions to participate. Petitions 

to Participate were received from: Mood 

Media Corp., Music Choice, Rockbot, 

Inc., Sirius XM Radio Inc. and Its 

Wholly Owned Subsidiaries, 

SoundExchange, Inc., Soundtrack Your 

Brand Sweden AB, and Stingray Music 

USA Inc. The Judges initiated the threemonth negotiation period and directed 

the participants to submit written direct 

statements no later than September 19, 

2022. See 17 U.S.C. 803(b)(3). 

On September 19, 2022, the Judges 

received a Motion to Adopt Settlement 

stating that all participants 1 had 

reached a settlement obviating the need 

for written direct statements or a 

hearing. 

Section 801(b)(7)(A) of the Copyright 

Act authorizes the Judges to adopt 

royalty rates and terms negotiated by 

‘‘some or all of the participants in a 

proceeding at any time during the 

proceeding’’ provided they are 

submitted to the Judges for approval. 

The Judges must provide ‘‘an 

opportunity to comment on the 

agreement’’ to both participants and 

non-participants in the rate proceeding 

who ‘‘would be bound by the terms, 

rates, or other determination set by any 

agreement . . .’’ 17 U.S.C. 

801(b)(7)(A)(i). Participants in the 

proceeding may also ‘‘object to [the 

agreement’s] adoption as a basis for 

statutory terms and rates.’’ Id. 

The Judges ‘‘may decline to adopt the 

agreement as a basis for statutory terms 

and rates for participants that are not 

parties to the agreement,’’ only ‘‘if any 

participant [to the proceeding] objects to 

the agreement and the [Judges] 

conclude, based on the record before 

them if one exists, that the agreement 

does not provide a reasonable basis for 

setting statutory terms or rates.’’ 17 

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

Royalty rates and terms adopted 

pursuant to section 801(b)(7)(A) are 

binding on all copyright owners of 

sound recordings and all business 

establishment services making an 

ephemeral recording of a sound 

recording for the period January 1, 2024, 

through December 31, 2028. 

List of Subjects in 37 CFR Part 384 

Copyright, Digital audio 

transmissions, Ephemeral recordings, 

Performance right, Sound recordings. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

propose to amend part 384 of chapter III 

of title 37 of the Code of Federal 

Regulations as follows: 

PART 384—RATES AND TERMS FOR 

THE MAKING OF EPHEMERAL 

RECORDINGS BY BUSINESS 

ESTABLISHMENT SERVICES 

■ 1. The authority citation for part 384 

continues to read as follows: 

Authority: 17 U.S.C. 112(e), 801(b)(1). 

§ 384.1 [Amended] 

■ 2. In § 384.1(a), remove the phrase 

‘‘January 1, 2019, through December 31, 

2023’’ and add in its place ‘‘January 1, 

2024, through December 31, 2028’’. 

■ 3. In § 384.3, revise paragraphs (a) and 

(b) to read as follows: 

§ 384.3 Royalty fees for ephemeral 

recordings. 

(a) Basic royalty rate. (1) For the 

making of any number of Ephemeral 

Recordings in the operation of a 

Business Establishment Service, a 

Licensee shall pay a royalty equal to the 

following percentages of such Licensee’s 

‘‘Gross Proceeds’’ derived from the use 

in such service of musical programs that 

are attributable to recordings subject to 

protection under title 17, United States 

Code: 

TABLE 1 TO PARAGRAPH (a)(1) 

Year Rate (%) 

2024 ...................................... 14.0 

2025 ...................................... 14.5 

2026 ...................................... 14.75 

2027 ...................................... 15.0 

2028 ...................................... 15.0 

(2) Gross Proceeds as used in this 

section means all fees and payments, 

including those made in kind, received 


lotter on DSK11XQN23PROD with PROPOSALS1
68528 Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 

from any source before, during or after 

the License Period that are derived from 

the use of sound recordings subject to 

protection under title 17, United States 

Code, during the License Period 

pursuant to 17 U.S.C. 112(e) for the sole 

purpose of facilitating a transmission to 

the public of a performance of a sound 

recording under the limitation on 

exclusive rights specified in 17 U.S.C. 

114(d)(1)(C)(iv). 

(3) Subject to paragraph (a)(4) of this 

section, the royalty specified in 

paragraph (a)(1) of this section for a 

particular Business Establishment 

Service offering may be reduced by a 

percentage corresponding to the ‘‘Direct 

License Share’’ for such Business 

Establishment Service offering, as 

follows: 

(i) If the transmissions of the Business 

Establishment Service offering are 

entirely made over the internet or the 

Licensee otherwise is able to count all 

of its Performances to business 

subscribers, the Direct License Share for 

such Business Establishment Service 

offering is its Performances of directly 

licensed sound recordings and sound 

recordings for which no license is 

required (e.g., sound recordings in 

which the copyrights are owned by the 

Licensee) (collectively, ‘‘Excluded 

Recordings’’) divided by its total 

Performances. 

(ii) If the transmissions of the 

Business Establishment Service offering 

are made to 10% or more of the bona 

fide subscriber locations of the Business 

Establishment Service offering over the 

internet, or the Licensee otherwise is 

able to count its Performances to 10% 

or more of bona fide subscriber 

locations of the Business Establishment 

Service offering, and the Business 

Establishment Service offering provides 

transmissions of a substantially similar 

set of channels (fairly represented by the 

countable channels) to other subscriber 

locations by means that do not allow the 

Licensee to count Performances (e.g., by 

satellite with no usage feedback), the 

Direct License Share for such Business 

Establishment Service offering is its 

Performances of Excluded Recordings to 

the locations where the Licensee is able 

to count its Performances divided by its 

total Performances to the locations 

where the Licensee is able to count its 

Performances. When reporting under 

§ 370.4(d)(2)(vii) of this chapter, such 

total countable Performances of sound 

recordings that are not Excluded 

Recordings shall be treated and reported 

as the ‘‘actual total performances’’ of the 

Business Establishment Service if the 

Direct License Share is calculated 

pursuant to this paragraph (a)(3)(ii). 

(iii) If paragraphs (a)(3)(i) and (ii) of 

this section do not apply, but the 

Licensee transmits a set of webcast 

channels substantially similar to and 

representative of the Business 

Establishment Service offering to 

consumers over the internet or by other 

means that allow the Licensee to count 

Performances on those channels 

(‘‘Reference Channels’’), the Direct 

License Share for such Business 

Establishment Service offering is its 

Performances of Excluded Recordings 

on the Reference Channels divided by 

its total Performances on the Reference 

Channels. 

(iv) Otherwise, the Direct License 

Share for such Business Establishment 

Service offering is a fraction calculated 

on a subscriber location-by-subscriber 

location basis, or if that is impracticable, 

on a uniform basis for all subscriber 

locations, where: 

(A) The numerator is the play 

frequency (as defined in § 370.4(b) of 

this chapter) of Excluded Recordings for 

the Business Establishment Service 

offering during a period of time each 

day as follows: 

(1) If the Direct License Share is 

calculated on a subscriber location-by 

subscriber location basis, during a 

continuous 12-hour period to be 

selected by the Licensee for each 

location for the month for which the 

payment is made, provided that each 

such location’s hours of operation fall 

entirely within the selected 12-hour 

period, or if such location is in 

operation for more than 12 hours per 

day, the selected 12-hour period 

consists of hours the location is in 

operation, including its main hours of 

operation; or 

(2) If the Direct License Share is 

calculated on a uniform basis for all 

locations, during the hours of 9 a.m. to 

9 p.m. local time; and 

(B) The denominator is the total play 

frequency (as defined in § 370.4(b) of 

this chapter) for the Business 

Establishment Service offering between 

the same hours as used in the 

numerator. 

(4) The Direct License Share 

reduction in paragraph (a)(3) of this 

section is available to a Licensee only if 

the Licensee provides the Collective, by 

no later than the due date for the 

relevant payment under § 384.4(c), a list 

of each Copyright Owner from which 

the Licensee claims to have a direct 

license of rights to Excluded Recordings 

that is in effect for the month for which 

the payment is made and of each sound 

recording for which the Licensee takes 

the reduction, identified by featured 

artist name, sound recording title, and 

International Standard Recording Code 

(ISRC) number or, if the ISRC is not 

available and feasible, album title and 

copyright owner name. Notwithstanding 

§ 384.5, the Collective may disclose 

such information as reasonably 

necessary for it to confirm whether a 

claimed direct license exists and 

claimed sound recordings are properly 

excludable. 

(5) For purposes of paragraph (a)(3) of 

this section, Performance means: 

(i) Except as discussed in paragraph 

(a)(5)(ii) of this section, a Performance is 

an instance in which any portion of a 

sound recording is publicly performed 

to a Business Establishment Service 

subscriber location within the United 

States (e.g., the delivery of any portion 

of a single track from a compact disc to 

one subscriber location). 

(ii) An instance in which a portion of 

a sound recording is publicly performed 

to a Business Establishment Service 

subscriber location within the United 

States is not a Performance if it both: 

(A) Makes no more than incidental 

use of sound recordings including, but 

not limited to, brief musical transitions 

in and out of commercials or program 

segments, brief use during news, talk 

and sports programming, brief 

background use during disk jockey 

announcements, brief use during 

commercials of sixty seconds or less in 

duration, or brief use during sporting or 

other public events; and 

(B) Does not contain an entire sound 

recording and does not feature a 

particular sound recording of more than 

thirty seconds (as in the case of a sound 

recording used as a theme song), except 

for ambient music that is background at 

a public event. 

(b) Minimum fee. Each Licensee shall 

pay a minimum fee of $25,000 for each 

calendar year of the License Period in 

which it makes Ephemeral Recordings 

for use to facilitate transmissions under 

the limitation on exclusive rights 

specified by 17 U.S.C. 114(d)(1)(C)(iv), 

whether or not it does so for all or any 

part of the year. These minimum fees 

shall be nonrefundable, but shall be 

fully creditable to royalty payments due 

under paragraph (a) of this section for 

the same calendar year (but not any 

subsequent calendar year). 

* * * * * 

■ 4. Amend § 384.4 as follows: 

■ a. Redesignate paragraphs (f), (g), and 

(h) as paragraphs (g), (i), and (j). 

■ b. Add new paragraph (f). 

■ c. Revise newly redesignated 

paragraph (g) introductory text. 

■ d. Further redesignate newly 

redesignated paragraphs (g)(3) through 

(8) as paragraphs (g)(4) through (9) and 

add new paragraph (g)(3). 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 191 / Wednesday, October 4, 2023 / Proposed Rules 68529 

■ e. Add new paragraph (h). 

■ f. Revise newly redesignated 

paragraph (i)(1). 

■ g. In newly redesignated paragraph 

(i)(2), remove ‘‘(g)(1)’’ and add ‘‘(i)(1)’’ 

in its place. 

The additions and revisions read as 

follows: 

§ 384.4 Terms for making payment of 

royalty fees and statements of account. 

* * * * * 

(f) Use of account numbers. If the 

Collective notifies a Licensee of an 

account number to be used to identify 

its royalty payments for a particular 

Business Establishment Service offering, 

the Licensee must include that account 

number on its check or check stub for 

any payment for that Business 

Establishment Service offering made by 

check, in the identifying information for 

any payment for that Business 

Establishment Service offering made by 

electronic transfer, in its statements of 

account for that Business Establishment 

Service offering under paragraph (g) of 

this section, and in the transmittal of its 

Reports of Use for that Business 

Establishment Service offering under 

§ 370.4 of this chapter. 

(g) Statements of account. For any 

part of the License Period during which 

a Licensee operates a Business 

Establishment Service, at the time when 

a minimum payment is due under 

paragraph (d) of this section, and by 45 

days after the end of each month during 

the period, the Licensee shall deliver to 

the Collective a statement of account 

containing the information set forth in 

this paragraph (g) on a form prepared, 

and made available to Licensees, by the 

Collective. In the case of a minimum 

payment, or if a payment is owed for 

such month, the statement of account 

shall accompany the payment. A 

statement of account shall contain only 

the following information: 

(1) Such information as is necessary 

to calculate the accompanying royalty 

payment, or if no payment is owed for 

the month, to calculate any portion of 

the minimum fee recouped during the 

month; 

(2) The name, address, business title, 

telephone number, facsimile number (if 

any), electronic mail address and other 

contact information of the person to be 

contacted for information or questions 

concerning the content of the statement 

of account; 

(3) The account number assigned to 

the Licensee by the Collective for the 

relevant Business Establishment Service 

offering (if the Licensee has been 

notified of such account number by the 

Collective); 

(4) The signature of: 

(i) The owner of the Licensee or a 

duly authorized agent of the owner, if 

the Licensee is not a partnership or 

corporation; 

(ii) A partner or delegee, if the 

Licensee is a partnership; or 

(iii) An officer of the corporation, if 

the Licensee is a corporation; 

(5) The printed or typewritten name 

of the person signing the statement of 

account; 

(6) The date of signature; 

(7) If the Licensee is a partnership or 

corporation, the title or official position 

held in the partnership or corporation 

by the person signing the statement of 

account; 

(8) A certification of the capacity of 

the person signing; and 

(9) A statement to the following effect: 

I, the undersigned owner or agent of 

the Licensee, or officer or partner, have 

examined this statement of account and 

hereby state that it is true, accurate and 

complete to my knowledge after 

reasonable due diligence. 

(h) International Standard Recording 

Codes. Notwithstanding § 370.4(d)(2)(v) 

of this chapter, the Licensee must use 

International Standard Recording Codes 

(ISRCs) in its Reports of Use, where 

available and feasible. 

(i) * * * 

(1) * * * However, in any case in 

which a Licensee has not provided a 

compliant Report of Use, whether for 

the License Period or otherwise, and the 

board of directors of the Collective 

determines that further efforts to seek 

the missing Report of Use from the 

Licensee would not be warranted, the 

Collective may determine that it will 

distribute the royalties associated with 

the Licensee’s missing Report of Use on 

the basis of a proxy data set approved 

by the board of directors of the 

Collective. 

* * * * * 

David P. Shaw, 

Chief Copyright Royalty Judge. 

[FR Doc. 2023–21123 Filed 10–3–23; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Docket No. EPA–R02–OAR–2023–0175; 

FRL 11053–01–R2] 

Approval of Air Quality Implementation 

Plans; New York; Emission Statement 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposal rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

State Implementation Plan (SIP) 

revisions submitted by New York State 

Department of Environmental 

Conservation (NYSDEC) for the purpose 

of enhancing an existing emission 

statement program for stationary sources 

in New York State. The SIP revision 

consists of amendments to regulations 

in New York’s Codes, Rules and 

Regulations (NYCRR) applicable to the 

emission statements. This SIP revision 

was submitted by NYSDEC to satisfy the 

ozone nonattainment provision of the 

Clean Air Act (Act or CAA). These 

provisions establish electronic reporting 

requirements for annual emission 

statements filed by facilities subject to 

Title V operating permits of the Act 

beginning in 2022 (for calendar year 

2021 emission reporting). 

The intended effect is to obtain 

improved emissions related data from 

facilities located in New York State, 

allowing NYSDEC to more effectively 

plan for, and attain, the national 

ambient air quality standards (NAAQS). 

The Emission Statement rule also 

improves EPA’s and the public’s access 

to facility specific emission related data. 

DATES: Written comments must be 

received on or before November 3, 2023. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R02– 

OAR–2023–0175 at https://

www.regulations.gov. Although listed in 

the index, some information is not 

publicly available, e.g., Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available through 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

The EPA may publish any comment 

received to its public docket. Do not 

submit electronically any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 


lotter on DSK11XQN23PROD with PROPOSALS1