26278 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 

occurring during the effective dates of the premium 

reduction program are not complete if they fail to 

include information on the availability of the 

premium reduction. 

7See note 6 above. 

Because employers may be subject to 

civil penalties if it is later determined 

that the termination was involuntary, 

the Department strongly recommends 

that notice be provided to individuals 

who experienced any termination of 

employment. The Department has 

updated its model Supplemental 

Information Notice. Using this model to 

provide notice to these individuals 

satisfies the requirements of ARRA, as 

amended by CEA. 

f. Notice of Extended Election Period 

The Notice of Extended Election 

Period is required to be sent by plans 

that are subject to COBRA continuation 

provisions under Federal or State law. It 

must include the information described 

above and be provided to ALL 

individuals who experienced a 

qualifying event that was a termination 

of employment from April 1, 2010 

through April 14, 2010, were provided 

notice that did not inform them of their 

rights under ARRA, as amended by 

CEA, and either chose not to elect 

COBRA continuation coverage at that 

time OR elected COBRA but 

subsequently discontinued that 

coverage. This notice must be provided 

before the end of the required time 

period for providing a COBRA election 

notice.7 The Department has updated its 

model Notice of Extended Election 

Period. Using this model to provide 

notice to these individuals satisfies the 

requirements of ARRA, as amended by 

CEA. 

III. For Additional Information 

For additional information about 

ARRA’s COBRA premium reduction 

provisions as amended by CEA, contact 

the Department’s Employee Benefits 

Security Administration’s Benefits 

Advisors at 1–866–444–3272. In 

addition, the Employee Benefits 

Security Administration has developed 

a dedicated COBRA Web page 

www.dol.gov/COBRA that will contain 

information on the program as it is 

developed. Subscribe to this page to get 

up-to-date fact sheets, FAQs, model 

notices, and applications. 

IV. Paperwork Reduction Act 

Statement 

According to the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13) 

(PRA), no persons are required to 

respond to a collection of information 

unless such collection displays a valid 

Office of Management and Budget 

(OMB) control number. The Department 

notes that a Federal agency cannot 

conduct or sponsor a collection of 

information unless it is approved by 

OMB under the PRA, and displays a 

currently valid OMB control number; 

further, the public is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. See 44 U.S.C. 3507. 

Also, notwithstanding any other 

provisions of law, no person shall be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number. See 44 U.S.C. 3512. 

OMB has approved the Department’s 

no-material, non-substantive change 

request for the updated notices under 

OMB Control Number 1210–0123. The 

public reporting burden for this 

collection of information is estimated to 

average approximately 3 minutes per 

respondent, including time for gathering 

and maintaining the data needed to 

complete the required disclosure. There 

is also an additional $0.44 average cost 

per response for mailing costs. 

Interested parties are encouraged to 

send comments regarding the burden 

estimate or any other aspect of this 

collection of information, including 

suggestions for reducing this burden, to 

the U.S. Department of Labor, Office of 

the Chief Information Officer, Attention: 

Departmental Clearance Officer, 200 

Constitution Avenue, NW., Room N– 

1301, Washington, DC 20210 or e-mail 

DOL_PRA_PUBLIC@dol.gov and 

reference the OMB Control Number 

1210–0123. 

V. Models 

The Department has decided to make 

the model notices available in 

modifiable, electronic form on its Web 

site: http://www.dol.gov/COBRA. 

VI. Statutory Authority 

Authority: 29 U.S.C. 1027, 1059, 1135, 

1161–1169; Sec. 3001, Pub. L. 111–5, 123 

Stat. 115; Sec. 1010, Pub. L. 111–118, 123 

Stat. 3409; Sec. 3, Pub. L. 111–144, 124 Stat. 

42; Sec. 3, Pub. L. 111–157, 124 Stat. 1116; 

and Secretary of Labor’s Order 6–2009, 74 FR 

21524 (May 7, 2009). 

Signed at Washington, DC, this 30th day of 

April 2010. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration. 

[FR Doc. 2010–11101 Filed 5–10–10; 8:45 am] 

BILLING CODE 4510–29–P 

LIBRARY OF CONGRESS 

Copyright Office 

[Docket No. RF 2009–1B] 

The Register of Copyrights’ and the 

Copyright Royalty Judges’ authority to 

determine the constitutionality of 17 

U.S.C. 114(f)(5) 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final Order. 

SUMMARY: Two material questions of 

substantive law were referred to the 

Register of Copyrights concerning the 

authority of the Register of Copyrights 

and the Copyright Royalty Judges to 

determine the constitutionality of 17 

U.S.C. 114(f)(5). The Register of 

Copyrights responded by delivering a 

Memorandum Opinion to the Copyright 

Royalty Board on April 30, 2010. 

DATES: Effective Date: April 30, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Tanya Sandros, Deputy General 

Counsel, or Stephen Ruwe, Attorney 

Advisor, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

Telephone: (202) 707–8380. Telefax: 

(202) 707–8366. 

SUPPLEMENTARY INFORMATION: In the 

Copyright Royalty and Distribution 

Reform Act of 2004, Congress amended 

Title 17 to replace the copyright 

arbitration royalty panels with the 

Copyright Royalty Judges (‘‘CRJs’’). One 

of the functions of the CRJs is to make 

determinations and adjustments of 

reasonable terms and rates of royalty 

payments as provided in sections 

112(e), 114, 115, 116, 118, 119 and 1004 

of the Copyright Act. The CRJs have the 

authority to request from the Register of 

Copyrights (‘‘Register’’) an interpretation 

of any material question of substantive 

law that relates to the construction of 

provisions of Title 17 and arises during 

the proceeding before the CRJs. See 17 

U.S.C. 802(f)(1)(A)(ii). 

On March 31, 2010, the Register 

received an Order from Copyright 

Royalty Judge William J. Roberts, Jr. 

referring the following two material 

questions of substantive law for her 

consideration: 

Does the Register of Copyrights have the 

authority under Chapter 7, or any other 

provisions of the Copyright Act, to 

determine the constitutionality of 17 

U.S.C. 114(f)(5)? 

Do the Copyright Royalty Judges have 

the authority under Chapter 8, or any 

other provisions of the Copyright Act, to 

determine the constitutionality of 17 

U.S.C. 114(f)(5)? 

The Register also received the briefs 

filed with the CRJs by RealNetworks, 


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Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 26279 

1 On April 20, 2010, the Register informed the 

CRJs that the referred questions are novel questions 

of law because they have not been determined in 

prior decisions, determinations or rulings (17 USC 

§ 803(a)). 

Inc. and SoundExchange, Inc., in 

connection with a February 12, 2010, 

motion filed by RealNetworks, Inc. 

seeking referral of novel material 

questions of substantive law, which was 

initially denied by the CRJs. 

In the March 31, 2010, Order, Judge 

Roberts referred the questions to the 

Register on his own initiative pursuant 

to 17 U.S.C. 802(f)(1)(A)(ii), which 

provides in pertinent part that ‘‘[o]ne or 

more Copyright Royalty Judges may, or 

by motion to the Copyright Royalty 

Judges, any participant in a proceeding 

may, request from the Register of 

Copyrights an interpretation of any 

material questions of substantive law 

that relate to the construction of 

provisions of this title and arise in the 

course of the proceeding.’’ Section 

802(f)(1)(A)(ii) allows a 14–day response 

period. However, section 802(f)(1)(B)(i) 

provides that when the CRJs request a 

decision by the Register on ‘‘a novel 

material question of substantive law 

concerning an interpretation of those 

provisions of this title that are the 

subject of the proceeding’’ (emphasis 

added), the Register shall transmit her 

decision within a 30–day response 

period. A novel question of law is one 

that ‘‘has not been determined in prior 

decisions, determinations, and rulings 

described in section 803(a).’’ Id. On 

April 20, 2010, the Register advised the 

CRJs that she had determined that the 

material questions of law that are the 

subject of the Order are novel because 

they have not been determined in prior 

decisions, determinations, and rulings 

described in 17 U.S.C. 803(a). See 17 

U.S.C. 802(f)(1)(B)(ii). 

On April 30, 2010, the Register 

responded in a Memorandum Opinion 

to the CRJs that addressed the novel 

material questions of law. To provide 

the public with notice of the decision 

rendered by the Register, the 

Memorandum Opinion is reproduced in 

its entirety, below. The timely delivery 

of the Register’s response requires that 

‘‘the Copyright Royalty Judges shall 

apply the legal determinations 

embodied in the decision of the Register 

of Copyrights in resolving material 

questions of substantive law.’’ See 17 

U.S.C. 802(f)(1)(B)(i). 

Dated: May 3, 2010 

David O. Carson, 

General Counsel. 

Before the 

U.S. Copyright Office 

Library of Congress 

Washington, D.C. 20559 

In the Matter of 

Digital Performance Right in Sound 

Recordings and Ephemeral 

Recordings 

Docket No. RF 2009–1B 

CRB Webcasting III 

MEMORANDUM OPINION 

ON MATERIAL QUESTIONS OF 

SUBSTANTIVE LAW 

I. Procedural Background 

On February 12, 2010, RealNetworks, 

Inc. (‘‘RealNetworks’’) filed a motion 

requesting referral to the Register of 

Copyrights of what it identified as two 

novel material questions of substantive 

law. That motion was denied by the 

Copyright Royalty Judges on March 30, 

2010. Order Denying Motion Requesting 

Referral of Novel Material Questions of 

Substantive Law, Docket No. 2009–1 

CRB Webcasting 111. 

The second question proposed in 

RealNetworks’ motion sought to identify 

whether the Register of Copyrights 

(‘‘Register’’) or the Copyright Royalty 

Judges (‘‘CRJs’’), or both, have the 

authority to determine the 

constitutionality of 17 U.S.C. § 114(f)(5), 

a provision that inter alia calls upon the 

CRJs to allow agreements made 

pursuant to the Webcaster Settlement 

Acts to be admitted into evidence or 

otherwise considered only if both 

parties to such agreements authorize 

submission of the agreements in a CRJ 

proceeding. While RealNetworks’ 

motion did not properly frame that 

question as novel within the meaning of 

17 U.S.C. § 802(f)(l)(B), Copyright 

Royalty Judge William J. Roberts Jr., in 

an order issued subsequent to the CRJs’ 

initial denial of RealNetworks’ motion, 

determined that there were referable 

questions within the meaning of 17 

U.S.C. § 802(f)(l)(A)(ii). That subsection 

provides, in pertinent part, that ‘‘one or 

more Copyright Royalty Judges may ... 

request from the Register of Copyrights 

an interpretation of any material 

questions of substantive law that relate 

to the construction of provisions of this 

title and arise in the course of the 

proceeding.’’ On March 31, 2010, 

pursuant to 17 U.S.C. § 802(f)(1), Judge 

Roberts referred the following two 

questions of law to the Register of 

Copyrights.1

Does the Register of Copyrights have the 

authority under Chapter 7, or any other 

provisions of the Copyright Act, to 

determine the constitutionality of 17 

U.S.C. § 114(f)(5)? 

Do the Copyright Royalty Judges have 

the authority under chapter 8, or any 

other provisions of the Copyright Act, to 

determine the constitutionality of 17 

U.S.C. § 114(f)(5)? 

The order referring the two questions 

was accompanied by the briefs that had 

been submitted by the parties as part of 

the pleading cycle on RealNetworks’ 

motion for referral. 

As required by 17 U.S.C. 

§ 802(f)(1)(B)(i), the Register hereby 

provides her response to the novel 

material questions of substantive law 

that were referred to her by Judge 

Roberts. 

II. Summary of Parties’ Arguments 

In its motion requesting referral of 

novel material questions of law, 

RealNetworks argues that the CRJs and 

the Register lack authority to determine 

that section 114(f)(5) is 

unconstitutional. In doing so, it 

observes that the Supreme Court has 

repeatedly stated that ‘‘adjudication of 

the constitutionality of congressional 

enactments has generally been thought 

beyond the jurisdiction of 

administrative agencies.’’ Thunder Basin 

Coal Co. v. Reich, 510 U.S. 200, 215 

(1994) (citing Johnson v. Robison, 415 

U.S. 361, 368 (1974)). Additionally, 

RealNetworks notes the D.C. Circuit’s 

observation that agencies may lack the 

institutional competence to resolve 

certain issues, such as the 

constitutionality of a statute. Hettinga v. 

United States, 560 F.3d 498, 506 (D.C. 

Cir. 2009) (citing, McCarthy v. Madigan, 

503 U.S. 140, 147 (1992)). 

SoundExchange Inc. 

(‘‘SoundExchange’’) filed a brief 

opposing RealNetworks’ motion 

requesting referral of novel material 

questions of law in which it echoed 

RealNetworks’ views that the CRJs and 

the Register lack authority to determine 

that section 114(f)(5) is 

unconstitutional. In doing so, 

SoundExchange notes that 

RealNetworks does not attempt to argue 

that the present circumstances offer an 

exception to the general rule, set forth 

in Thunder Basin, that agencies do not 

have the authority to determine the 

constitutionality of congressional 

enactments. 

In RealNetworks’ reply in support of 

its motion for referral of novel material 

questions of law, it observes that 

RealNetworks and SoundExchange both 

cited Thunder Basin for the proposition 

that adjudication of the constitutionality 

of congressional enactments is generally 

beyond the jurisdiction of an 

administrative body. RealNetworks 


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26280 Federal Register / Vol. 75, No. 90 / Tuesday, May 11, 2010 / Notices 

2 Various administrative agencies have come to 

the same conclusion when confronted with 

questions regarding their authority to determine the 

constitutionality of statutory provisions. 63 Fed. 

Reg. 6614, 6620 (February 9, 1998) (Department of 

Labor finding that, as the agency given the 

administrative authority to implement a statutory 

provision, it has no authority to question the 

constitutionality of the statute); 56 Fed. Reg. 11653, 

11660 (March 20, 1991) (Federal Trade Commission 

finding that it does not have authority to determine 

the constitutionality of the statutes it enforces); 50 

Fed. Reg. 35418, 35422 (August 30, 1985) (Federal 

Communications Commission finding that 

administrative agencies are not tasked with the duty 

to adjudicate the constitutionality of a federal 

statute, citing Johnson v. Robison, 415 U.S. at 368). 

3 17 U.S.C. § 801(b)(1) calls upon the CRJs to 

‘‘make determinations and adjustments of 

reasonable terms and rates of royalty payments as 

provided in sections 112(e), 114, 115, 116, 118, 119, 

and 1004.’’ (emphasis added). 

asserts that while the private parties 

agree that the general rule should apply 

in this case, the Court held in Thunder 

Basin that the general rule did not apply 

in that case, explaining: ‘‘This rule is not 

mandatory, however, and is perhaps of 

less consequence where, as here, the 

reviewing body is not the agency itself 

but an independent Commission’’ that 

‘‘has addressed constitutional questions 

in previous enforcement proceedings.’’ 

Thunder Basin, 510 U.S. at 215 (1994). 

III.Register’s Determination 

The Register acknowledges the rule 

set forth in Thunder Basin that 

adjudication of the constitutionality of 

congressional enactments is generally 

beyond the jurisdiction of 

administrative agencies. Thunder Basin, 

510 U.S. at 215 (1994) (citing Johnson v. 

Robison, 415 U.S. 361, 368 (1974) 

(adjudication of the constitutionality of 

congressional enactments has generally 

been thought beyond the jurisdiction of 

administrative agencies)); See also 

Motor & Equipment Mfrs. Asso. v. 

Environmental Protection Agency, 627 

F.2d 1095, 1115 (D.C. Cir. 1979).2 The 

parties are in agreement that this general 

rule applies to foreclose the Register and 

the CRJs from determining the 

constitutionality of 17 U.S.C. § 114(f)(5). 

However, in order to determine whether 

the Register or the CRJs do not have the 

authority under the provisions of the 

Copyright Act to determine the 

constitutionality of 17 U.S.C. § 114(f)(5), 

the exceptions to the general rule must 

be considered. 

While the case law regarding 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments is slim, in Thunder Basin, 

the general rule was not found to apply 

because the reviewing body was not the 

agency itself. Rather the Federal Mine 

Safety and Health Review Commission 

was an independent Commission 

established exclusively to adjudicate 

disputed enforcement measures 

undertaken by the Mine Safety and 

Health Administration pursuant to the 

statute in question. The court also 

observed that even if the agency or 

independent Commission were not 

authorized to determine the 

constitutionality of congressional 

enactments, the constitutional claims 

could be meaningfully addressed in the 

Court of Appeals, thus avoiding the 

‘‘serious constitutional question’’ that 

would arise if an agency’s organic 

statute were construed to preclude all 

judicial review of a constitutional claim. 

Id. 

Case law reveals additional 

considerations that are relevant in 

determining whether it is proper to 

apply the general rule against agency 

adjudication of the constitutionality of 

congressional enactments. For instance, 

the general rule ‘‘is subject to Congress’s 

allocation of adjudicative 

responsibility.’’ Riggin v. Office of 

Senate Fair Employment Practices, 61 

F.3d 1563, 1569 (Fed. Cir. 1995) (citing 

Thunder Basin, 510 U.S. at 215 (1994)). 

Additionally, a finding that the agency 

lacks jurisdiction to decide 

constitutional questions is especially 

likely when the constitutional claim 

asks the agency to act contrary to its 

statutory charter. Riggin, 61 F.3d at 

1569; See also Weinberger v. Salfi, 422 

U.S. 749, 765 (1975); Johnson v. 

Robison, 415 at 367; Public Utilities 

Commission v. United States, 355 U.S. 

534, 539 (1958). In the Riggin case, the 

general rule was not applied in part 

because the constitutional issue did not 

require the agency to question its own 

statutory authority or to disregard any 

instructions Congress had given it. 

In the case at hand, the established 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments are not applicable. Nowhere 

in title 17 are either the Register or the 

CRJs allocated any adjudicative 

responsibility to determine the 

constitutionality of statutory provisions. 

Additionally, the CRJs are not the type 

of independent Commission at issue in 

Thunder Basin, which was established 

to review agency actions. While it is 

true that 17 U.S.C. § 802(f)(1) calls upon 

the Register to, in certain circumstances, 

offer either ‘‘an interpretation of any 

material questions of substantive law 

that relate to the construction of 

provisions of this title and arise in the 

course of the proceeding’’ or ‘‘an 

interpretation of those provisions of this 

title that are the subject of the 

proceeding,’’ these provisions address 

interpretation of statutory provisions 

themselves and do not authorize 

determinations as to the 

constitutionality of such provisions. 17 

U.S.C. § 802(f)(1)(A)&(B). Similarly, the 

Register’s authority to review the CRJs’ 

final determinations for errors of law is 

also directed toward material questions 

of substantive law under title 17, not 

toward the constitutionality of such 

provisions. 17 U.S.C. § 802(f)(1)(D). Like 

the Mine Safety and Health 

Administration (‘‘MSHA’’) in Thunder 

Basin, the CRJs are tasked with carrying 

out statutory duties prescribed by 

Congress. However, unlike the 

independent Commission in Thunder 

Basin, which had broad authority to 

review the actions of the MSHA, the 

Register, as indicated above, has a 

narrower authority in these proceedings, 

which allows her only to determine 

issues of substantive law under title 17. 

Finally, unlike the constitutional claim 

in Riggin, a determination by the CRJs 

that 17 U.S.C. § 114(f)(5) is 

unconstitutional would necessarily 

require the CRJs to act contrary to their 

statutory charter, which pointedly 

directs the CRJs to act in accordance 

with the provisions of section 114(f)(5).3

Under that provision, the CRJs may 

allow agreements made pursuant to the 

Webcaster Settlement Acts to be 

admitted into evidence or otherwise 

considered only if both parties to such 

agreements authorize submission of the 

agreements in a CRJ proceeding. 

As neither the Register nor the CRJs 

have any specific authority under 

Chapter 7, or any other provisions of the 

Copyright Act, to determine the 

constitutionality of 17 U.S.C. § 114(f)(5), 

and because no other established 

exceptions to the general rule against 

agency adjudication of the 

constitutionality of congressional 

enactments are applicable, the Register 

concludes that neither the Register nor 

the CRJs have the authority under the 

Copyright Act to determine the 

constitutionality of 17 U.S.C. § 114(f)(5). 

April 30, 2010 

Marybeth Peters, 

Register of Copyrights. 

[FR Doc. 2010–11116 Filed 5–10–10; 8:45 am] 

BILLING CODE 1410–30–S 

NATIONAL ARCHIVES AND RECORDS 

ADMINISTRATION 

Records Schedules; Availability and 

Request for Comments 

AGENCY: National Archives and Records 

Administration (NARA). 


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