Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 16377 

1Prior to the enactment of the Copyright Royalty 

and Distribution Reform Act of 2004, which 

established the Copyright Royalty Judges, rates and 

terms for the sections 114 and 112 statutory licenses 

were set under the Copyright Arbitration Royalty 

Panel system, which was administered by the 

Librarian of Congress. 

immediately when directed to do so by 

the Coast Guard Patrol Commander or 

any Official Patrol. 

(ii) Proceed as directed by the Coast 

Guard Patrol Commander or any Official 

Patrol. 

(d) Enforcement period: This section 

will be enforced from 6 a.m. until 5 p.m. 

on June 19, 2010, or in the case of 

inclement weather, from 6 a.m. to 5 p.m. 

on June 20, 2010. 

(3) The Coast Guard will publish a 

notice in the Fifth Coast Guard District 

Local Notice to Mariners and issue 

marine information broadcast on VHF– 

FM marine band radio announcing 

specific event date and times. 

Dated: March 12, 2010. 

Mark P. O’Malley, 

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

Port Baltimore, Maryland. 

[FR Doc. 2010–7426 Filed 3–31–10; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 380 

[Docket No. 2009–1 CRB Webcasting III] 

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 broadcasters and 

noncommercial educational webcasters 

and for the making of ephemeral 

recordings necessary for the facilitation 

of such transmissions for the period 

commencing January 1, 2011, and 

ending on December 31, 2015. 

DATES: Comments and objections, if any, 

are due no later than April 22, 2010. 

ADDRESSES: Comments and objections 

may be sent electronically to 

crb@loc.gov. In the alternative, send an 

original, five copies and an electronic 

copy on a CD either by mail or hand 

delivery. Please do not use multiple 

means of transmission. Comments and 

objections may not be delivered by an 

overnight delivery service other than the 

U.S. Postal Service Express Mail. If by 

mail (including overnight delivery), 

comments and objections must be 

addressed to: Copyright Royalty Board, 

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

0977. If hand delivered by a private 

party, comments and objections must be 

brought to the Copyright Office Public 

Information Office, Library of Congress, 

James Madison Memorial Building, 

Room LM–401, 101 Independence 

Avenue, SE., Washington, DC 20559– 

6000, between 8:30 a.m. and 5 p.m. If 

delivered by a commercial courier, 

comments and objections must be 

delivered between 8:30 a.m. and 4 p.m. 

to the Congressional Courier Acceptance 

Site located at 2nd and D Street, NE., 

Washington, DC, and the envelope must 

be addressed to: Copyright Royalty 

Board, Library of Congress, James 

Madison Memorial Building, LM–403, 

101 Independence Avenue, SE., 

Washington, DC 20559–6000. 

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 

Section 114 of the Copyright Act, title 

17 of the United States Code, provides 

a statutory license which allows for the 

public performance of sound recordings 

by means of a digital audio transmission 

by, among others, eligible 

nonsubscription transmission services 

and new subscription services. 17 

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

section 114 license, an ‘‘eligible 

nonsubscription transmission’’ is a 

noninteractive digital audio 

transmission which 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). A ‘‘new subscription service’’ 

is a ‘‘service that performs sound 

recordings by means of noninteractive 

subscription digital audio transmissions 

and that is not a preexisting 

subscription or preexisting satellite 

digital audio radio service.’’ 17 U.S.C. 

114(j)(8). 

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 these ephemeral 

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

Chapter 8 of the Copyright Act 

requires the Copyright Royalty Judges 

(‘‘Judges’’) to conduct proceedings every 

five years to determine the rates and 

terms for the sections 114 and 112 

statutory licenses, beginning with the 

license period 2006 through 2010.1 17 

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

Judges announced their final 

determination of the rates and terms for 

the 2006–2010 license period on May 1, 

2007. 72 FR 24084 (May 1, 2007), 

affirmed in part, remanded in part, 

Intercollegiate Broadcast System v. 

Copyright Royalty Board, 574 F.3d 748 

(DC Cir. 2009). 

Therefore, the next proceeding to 

determine reasonable terms and rates of 

royalty payment for the sections 114 

and 112 licenses was to be commenced 

in January 2009, with such rates and 

terms to become effective on January 1, 

2011. 17 U.S.C. 804(b)(3)(A). Pursuant 

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

published in the Federal Register a 

notice commencing the rate 

determination proceeding for the license 

period 2011–2015 and requesting 

interested parties to submit their 

petitions to participate. 74 FR 318 

(January 5, 2009). Petitions to 

Participate were received from: 

Intercollegiate Broadcast System, 

Inc./Harvard Radio Broadcasting Co.; 

Live365, Inc.; LoudCity LLC; 

AccuRadio, LLC, Digitally Imported, 

Inc., Got Radio, LLC, IoWorldMedia, 

Inc., Radio Paradise, Inc., and 

SomaFM.com LLC, filing jointly; 

SoundExchange, Inc. 

(‘‘SoundExchange’’); Amazon.com; 

RealNetworks, Inc.; College 

Broadcasters, Inc. (‘‘CBI’’); David W. 

Rahn; Royalty Logic, Inc.; 

Commonwealth Broadcasting 

Corporation; Sirius XM Radio, Inc.; 

Clear Channel Communications, Inc.; 

National Religious Broadcasters Music 

License Committee; National Religious 

Broadcasters Noncommercial Music 

License Committee; Apple, Inc.; Digital 

Media Association, Inc.; Citadel 

Broadcasting Corporation, Clarke 

Broadcasting Corporation, Entercom 

Communications Corp., Galaxy 

Communications LP, and Greater Media, 

Inc., filing jointly; CBS Radio, Inc.; NCE 

Radio Coalition.; Slacker, Inc.; Catholic 

Radio Association; Yahoo! Inc.; Spatial 

Audio Solutions; National Association 

of Broadcasters (‘‘NAB’’); Bonneville 

International Corporation; Pandora 

Media, Inc.; mSpot, Inc.; MTV Networks 

Viacom; and Access2ip. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
16378 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 

2The Judges are proposing to separate the current 

section 380 into three subparts. Proposed Subpart 

A contains the rates and terms for commercial 

webcasters and noncommercial webcasters for the 

2006–2010 license period. Rates and terms for the 

license period 2011–2015 for these services will be 

determined after a full hearing before the Judges 

and will be published in a separate document. 

Proposed Subpart B contains the rates and terms 

governing the transmissions of broadcasters under 

sections 114 and 112 for 2011–2015, and proposed 

Subpart C contains the rates and terms governing 

the transmissions of noncommercial educational 

webcasters under the 114 and 112 licenses for 

2011–2015. 

The Judges set the timetable for the 

three-month negotiation period, see 17 

U.S.C. 803(b)(3), from March 2, 2009, 

through June 1, 2009. On June 1, 2009, 

the Judges received a joint motion from 

SoundExchange and NAB to adopt a 

partial settlement for certain Internet 

transmissions by commercial 

broadcasters. On June 24, 2009, the 

Judges set September 29, 2009, as the 

deadline by which participants were to 

submit their written direct statements. 

On August 13, 2009, SoundExchange 

and CBI submitted to the Judges a joint 

motion to adopt a partial settlement for 

certain Internet transmissions by college 

radio stations and other noncommercial 

educational webcasters. 

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 they are 

submitted to the Copyright Royalty 

Judges for approval. This section 

provides that in such event: 

(i) The Copyright Royalty Judges shall 

provide to those that would be bound by the 

terms, rates, or other determination set by 

any agreement in a proceeding to determine 

royalty rates an opportunity to comment on 

the agreement and shall provide to 

participants in the proceeding under section 

803(b)(2) that would be bound by the terms, 

rates, or other determination set by the 

agreement an opportunity to comment on the 

agreement and object to its adoption as a 

basis for statutory terms and rates; and 

(ii) The Copyright Royalty Judges may 

decline to adopt the agreement as a basis for 

statutory terms and rates for participants that 

are not parties to the agreement, if any 

participant described in clause (i) objects to 

the agreement and the Copyright Royalty 

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)(1)(7)(A). Rates and 

terms adopted pursuant to this 

provision are binding on all copyright 

owners of sound recordings and 

commercial broadcasters and college 

radio stations and other noncommercial 

educational webcasters performing the 

sound recordings for the license period 

2011–2015.2

As part of this notice, the Judges are 

modifying two aspects of the proposed 

rates and terms in proposed Subpart B 

for broadcasters making certain eligible 

transmissions of sound recordings. First, 

SoundExchange and NAB have 

included language in their proposal that 

states that the rate for ephemeral 

recordings has no precedential effect in 

any judicial, administrative, or other 

proceeding. The Judges decline to 

include such language within our 

regulations. Our task, as set forth in 

section 112 and chapter 8 of the 

Copyright Act, is to adopt rates and 

terms for the compulsory license for the 

making of ephemeral reproductions to 

facilitate digital audio transmissions. 

Such language is not relevant to this 

task. See Mechanical and Digital 

Phonorecord Delivery Rate 

Determination Proceeding, Docket No. 

2006–3 CRB DPRA, 73 FR 57033, 57034 

(October 1, 2008); Noncommercial 

Educational Broadcasting Statutory 

License, Docket No. 2006–2 CRB 

NCBRA, 72 FR 19138, 19139 (April 17, 

2007). 

The Judges also decline for the same 

reason to include the language proposed 

by SoundExchange and NAB regarding 

the legal effect of the Collective’s 

acceptance of an election, payment or 

reporting on the compliance of a 

Broadcaster or Small Broadcaster with 

the sections 112(e) or 114 licenses or the 

reservation of right to sue by the 

Collective or Copyright Owner for 

noncompliance. Again, such language is 

not relevant to our task of setting rates 

and terms under sections 112 and 114 

of the Copyright Act. 

The Judges are modifying two aspects 

of the proposed rates and terms in 

proposed Subpart C for noncommercial 

educational webcasters. In the 

settlement proposal submitted to the 

Judges, SoundExchange and CBI 

included a provision governing 

reporting by noncommercial 

educational webcasters—proposed 

§§ 380.23(g)(2) and (g)(3) herein—stating 

that such reporting requirements would 

be those in the notice and recordkeeping 

regulations in part 370 as they existed 

on January 1, 2009, specifically to then 

§§ 370.3 and 370.3(c)(2)(vi). The Judges 

amended these regulations on October 

11, 2009, see 74 FR 52418, and 

consequently, sections were 

renumbered. Proposed §§ 380.23(g)(2) 

and (g)(3) reflect the current section 

numbers of part 370, namely, §§ 370.4 

and 370.4(d)(2)(vi), respectively, and the 

references to January 1, 2009, have been 

deleted. Next, for the reasons stated 

above in rejecting similar language in 

the SoundExchange/NAB proposal, the 

Judges decline to include in our 

regulations the language proposed by 

SoundExchange and CBI regarding what 

represents compliance with the sections 

112(e) and 114 licenses and the 

reservation of right to sue. 

As noted above, 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 

22, 2010. 

List of Subjects in 37 CFR Part 380 

Copyright, Sound recordings. 

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). 

Subpart A—Commercial Webcasters 

and Noncommercial Webcasters 

2. Designate existing § 380.1 through 

§ 380.8 as Subpart A, and add a heading 

for Subpart A to read as set forth above. 

3. Add Subpart B to read as follows: 

Subpart B—Broadcasters 

Sec. 

380.10 General. 

380.11 Definitions. 

380.12 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

380.13 Terms for making payment of 

royalty fees and statements of account. 

380.14 Confidential information. 

380.15 Verification of royalty payments. 

380.16 Verification of royalty distributions. 

380.17 Unclaimed funds. 

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

804(b)(3). 

Subpart B—Broadcasters 

§ 380.10 General. 

(a) Scope. This subpart establishes 

rates and terms of royalty payments for 

the public performance of sound 

recordings in certain digital 

transmissions made by Broadcasters as 

set forth herein in accordance with the 

provisions of 17 U.S.C. 114, and the 

making of Ephemeral Recordings by 

Broadcasters as set forth herein in 

accordance with the provisions of 17 

U.S.C. 112(e), during the period January 

1, 2011, through December 31, 2015. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 16379 

(b) Legal compliance. Broadcasters 

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 not inconsistent with the 

rates and terms set forth herein. 

(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 digital audio 

services shall apply in lieu of the rates 

and terms of this subpart to 

transmission within the scope of such 

agreements. 

§ 380.11 Definitions. 

For purposes of this subpart, the 

following definitions shall apply: 

Aggregate Tuning Hours means the 

total hours of programming that the 

Broadcaster has transmitted during the 

relevant period to all listeners within 

the United States from any channels and 

stations that provide audio 

programming consisting, in whole or in 

part, of Eligible Transmissions. 

Broadcaster means an entity that 

(1) Has a substantial business owning 

and operating one or more terrestrial 

AM or FM radio stations that are 

licensed as such by the Federal 

Communications Commission; 

(2) Has obtained a compulsory license 

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

implementing regulations therefor to 

make Eligible Transmissions and related 

ephemeral recordings; 

(3) Complies with all applicable 

provisions of Sections 112(e) and 114 

and applicable regulations; and 

(4) Is not a noncommercial webcaster 

as defined in 17 U.S.C. 114(f)(5)(E)(i). 

Broadcaster Webcasts mean eligible 

nonsubscription transmissions made by 

a Broadcaster over the Internet that are 

not Broadcast Retransmissions. 

Broadcast Retransmissions mean 

eligible nonsubscription transmissions 

made by a Broadcaster over the Internet 

that are retransmissions of terrestrial 

over-the-air broadcast programming 

transmitted by the Broadcaster through 

its AM or FM radio station, including 

ones with substitute advertisements or 

other programming occasionally 

substituted for programming for which 

requisite licenses or clearances to 

transmit over the Internet have not been 

obtained. For the avoidance of doubt, a 

Broadcast Retransmission does not 

include programming that does not 

require a license under United States 

copyright law or that is transmitted on 

an Internet-only side channel. 

Collective is the collection and 

distribution organization that is 

designated by the Copyright Royalty 

Judges. For the 2011–2015 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). 

Eligible Transmission shall mean 

either a Broadcaster Webcast or a 

Broadcast Retransmission. 

Ephemeral Recording is a 

phonorecord created for the purpose of 

facilitating an Eligible Transmission of a 

public performance of a sound 

recording under a statutory license in 

accordance with 17 U.S.C. 114(f), and 

subject to the limitations specified in 17 

U.S.C. 112(e). 

Performance is each instance in 

which any portion of a sound recording 

is publicly performed to a listener by 

means of a digital audio transmission 

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

single track from a compact disc to one 

listener) but excluding the following: 

(1) A performance of a sound 

recording that does not require a license 

(e.g., a sound recording that is not 

copyrighted); 

(2) A performance of a sound 

recording for which the Broadcaster has 

previously obtained a license from the 

Copyright Owner of such sound 

recording; and 

(3) An incidental performance that 

both: 

(i) 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 performances during 

news, talk and sports programming, 

brief background performances during 

disk jockey announcements, brief 

performances during commercials of 

sixty seconds or less in duration, or 

brief performances during sporting or 

other public events and 

(ii) Other than ambient music that is 

background at a public event, 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). 

Performers means the independent 

administrators identified in 17 U.S.C. 

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

identified in 17 U.S.C. 114(g)(2)(D). 

Qualified Auditor is a Certified Public 

Accountant. 

Small Broadcaster is a Broadcaster 

that, for any of its channels and stations 

(determined as provided in § 380.12(c)) 

over which it transmits Broadcast 

Retransmissions, and for all of its 

channels and stations over which it 

transmits Broadcaster Webcasts in the 

aggregate, in any calendar year in which 

it is to be considered a Small 

Broadcaster, meets the following 

additional eligibility criteria: 

(1) During the prior year it made 

Eligible Transmissions totaling less than 

27,777 Aggregate Tuning Hours; and 

(2) During the applicable year it 

reasonably expects to make Eligible 

Transmissions totaling less than 27,777 

Aggregate Tuning Hours; provided that, 

one time during the period 2011–2015, 

a Broadcaster that qualified as a Small 

Broadcaster under the foregoing 

definition as of January 31 of one year, 

elected Small Broadcaster status for that 

year, and unexpectedly made Eligible 

Transmissions on one or more channels 

or stations in excess of 27,777 aggregate 

tuning hours during that year, may 

choose to be treated as a Small 

Broadcaster during the following year 

notwithstanding paragraph (1) of the 

definition of ‘‘Small Broadcaster’’ if it 

implements measures reasonably 

calculated to ensure that it will not 

make Eligible Transmissions exceeding 

27,777 aggregate tuning hours during 

that following year. As to channels or 

stations over which a Broadcaster 

transmits Broadcast Retransmissions, 

the Broadcaster may elect Small 

Broadcaster status only with respect to 

any of its channels or stations that meet 

all of the foregoing criteria. 

§ 380.12 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

(a) Royalty rates. Royalties for Eligible 

Transmissions made pursuant to 17 

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

ephemeral recordings pursuant to 17 

U.S.C. 112(e), shall, except as provided 

in § 380.13(g)(3), be payable on a perperformance basis, as follows: 

(1) 2011: $0.0017; 

(2) 2012: $0.0020; 

(3) 2013: $0.0022; 

(4) 2014: $0.0023; 

(5) 2015: $0.0025. 

(b) Ephemeral royalty. The royalty 

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

reproduction of a phonorecord made by 

a Broadcaster during this license period 

and used solely by the Broadcaster to 

facilitate transmissions for which it pays 

royalties as and when provided in this 

section is deemed to be included within 

such royalty payments and to equal the 

percentage of such royalty payments 

determined by the Copyright Royalty 

Judges for other webcasting as set forth 

in § 380.3. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
16380 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 

(c) Minimum fee. Each Broadcaster 

will pay an annual, nonrefundable 

minimum fee of $500 for each of its 

individual channels, including each of 

its individual side channels, and each of 

its individual stations, through which 

(in each case) it makes Eligible 

Transmissions, for each calendar year or 

part of a calendar year during 2011– 

2015 during which the Broadcaster is a 

licensee pursuant to licenses under 17 

U.S.C. 112(e) and 114, provided that a 

Broadcaster shall not be required to pay 

more than $50,000 in minimum fees in 

the aggregate (for 100 or more channels 

or stations). For the purpose of this 

subpart, each individual stream (e.g., 

HD radio side channels, different 

stations owned by a single licensee) will 

be treated separately and be subject to 

a separate minimum, except that 

identical streams for simulcast stations 

will be treated as a single stream if the 

streams are available at a single Uniform 

Resource Locator (URL) and 

performances from all such stations are 

aggregated for purposes of determining 

the number of payable performances 

hereunder. Upon payment of the 

minimum fee, the Broadcaster will 

receive a credit in the amount of the 

minimum fee against any additional 

royalties payable for the same calendar 

year for the same channel or station. In 

addition, an electing Small Broadcaster 

also shall pay a $100 annual fee (the 

‘‘Proxy Fee’’) to the Collective for the 

reporting waiver discussed in 

§ 380.13(g)(2). 

§ 380.13 Terms for making payment of 

royalty fees and statements of account. 

(a) Payment to the Collective. A 

Broadcaster shall make the royalty 

payments due under § 380.12 to the 

Collective. 

(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 from Broadcasters due under 

§ 380.12 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) and 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 paragraph (b)(2) of this section, such 

representatives shall file a petition with 

the Copyright Royalty Board 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 

such 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) Monthly payments and reporting. 

Broadcasters must make monthly 

payments where required by § 380.12, 

and provide statements of account and 

reports of use, for each month on the 

45th day following the month in which 

the Eligible Transmissions subject to the 

payments, statements of account, and 

reports of use were made. All monthly 

payments shall be rounded to the 

nearest cent. 

(d) Minimum payments. A 

Broadcaster shall make any minimum 

payment due under § 380.12(b) by 

January 31 of the applicable calendar 

year, except that payment by a 

Broadcaster that was not making 

Eligible Transmissions or Ephemeral 

Recordings pursuant to the licenses in 

17 U.S.C. 114 and/or 17 U.S.C. 112(e) as 

of said date but begins doing so 

thereafter shall be due by the 45th day 

after the end of the month in which the 

Broadcaster commences to do so. 

(e) Late fees. A Broadcaster shall pay 

a late fee for each instance in which any 

payment, any statement of account or 

any report of use is not received by the 

Collective in compliance with 

applicable regulations by the due date. 

The amount of the late fee shall be 1.5% 

of a late payment, or 1.5% of the 

payment associated with a late 

statement of account or report of use, 

per month, or the highest lawful rate, 

whichever is lower. The late fee shall 

accrue from the due date of the 

payment, statement of account or report 

of use until a fully compliant payment, 

statement of account or report of use is 

received by the Collective, provided 

that, in the case of a timely provided but 

noncompliant statement of account or 

report of use, the Collective has notified 

the Broadcaster within 90 days 

regarding any noncompliance that is 

reasonably evident to the Collective. 

(f) Statements of account. Any 

payment due under § 380.12 shall be 

accompanied by a corresponding 

statement of account. A statement of 

account shall contain the following 

information: 

(1) Such information as is necessary 

to calculate the accompanying royalty 

payment; 

(2) The name, address, business title, 

telephone number, facsimile number (if 

any), electronic mail address (if any) 

and other contact information of the 

person to be contacted for information 

or questions concerning the content of 

the statement of account; 

(3) The handwritten signature of: 

(i) The owner of the Broadcaster or a 

duly authorized agent of the owner, if 

the Broadcaster is not a partnership or 

corporation; 

(ii) A partner or delegee, if the 

Broadcaster is a partnership; or 

(iii) An officer of the corporation, if 

the Broadcaster is a corporation. 

(4) The printed or typewritten name 

of the person signing the statement of 

account; 

(5) The date of signature; 

(6) If the Broadcaster is a partnership 

or corporation, the title or official 

position held in the partnership or 

corporation by the person signing the 

statement of account; 

(7) A certification of the capacity of 

the person signing; and 

(8) A statement to the following effect: 

I, the undersigned owner or agent of the 

Broadcaster, 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. 

(g) Reporting by Broadcasters in 

General. (1) Broadcasters other than 

electing Small Broadcasters covered by 

paragraph (g)(2) of this section shall 

submit reports of use on a perperformance basis in compliance with 

the regulations set forth in part 370 of 

this chapter, except that the following 

provisions shall apply notwithstanding 

the provisions of such part 370 of this 

chapter from time to time in effect: 

(i) Broadcasters may pay for, and 

report usage in, a percentage of their 

programming hours on an Aggregate 

Tuning Hour basis as provided in 

paragraph (g)(3) of this section. 

(ii) Broadcasters shall submit reports 

of use to the Collective on a monthly 

basis. 

(iii) As provided in paragraph (d) of 

this section, Broadcasters shall submit 

reports of use by no later than the 45th 

day following the last day of the month 

to which they pertain. 

(iv) Except as provided in paragraph 

(g)(3) of this section, Broadcasters shall 

submit reports of use to the Collective 

on a census reporting basis (i.e., reports 

of use shall include every sound 

recording performed in the relevant 

month and the number of performances 

thereof). 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
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(v) Broadcasters shall either submit a 

separate report of use for each of their 

stations, or a collective report of use 

covering all of their stations but 

identifying usage on a station-by-station 

basis; 

(vi) Broadcasters shall transmit each 

report of use in a file the name of which 

includes 

(A) The name of the Broadcaster, 

exactly as it appears on its notice of use, 

and 

(B) If the report covers a single station 

only, the call letters of the station. 

(vii) Broadcasters shall submit reports 

of use with headers, as presently 

described in § 370.4(e)(7) of this 

chapter. 

(viii) Broadcasters shall submit a 

separate statement of account 

corresponding to each of their reports of 

use, transmitted in a file the name of 

which includes 

(A) The name of the Broadcaster, 

exactly as it appears on its notice of use, 

and 

(B) If the statement covers a single 

station only, the call letters of the 

station. 

(2) On a transitional basis for a 

limited time in light of the unique 

business and operational circumstances 

currently existing with respect to Small 

Broadcasters and with the expectation 

that Small Broadcasters will be 

required, effective January 1, 2016, to 

report their actual usage in compliance 

with then-applicable regulations. Small 

Broadcasters that have made an election 

pursuant to paragraph (h) of this section 

for the relevant year shall not be 

required to provide reports of their use 

of sound recordings for Eligible 

Transmissions and related Ephemeral 

Recordings. The immediately preceding 

sentence applies even if the Small 

Broadcaster actually makes Eligible 

Transmissions for the year exceeding 

27,777 Aggregate Tuning Hours, so long 

as it qualified as a Small Broadcaster at 

the time of its election for that year. In 

addition to minimum royalties 

hereunder, electing Small Broadcasters 

will pay to the Collective a $100 Proxy 

Fee to defray costs associated with this 

reporting waiver, including 

development of proxy usage data. 

(3) Broadcasters generally reporting 

pursuant to paragraph (g)(1) of this 

section may pay for, and report usage in, 

a percentage of their programming hours 

on an Aggregate Tuning Hours basis, if 

(i) Census reporting is not reasonably 

practical for the programming during 

those hours, and 

(ii) If the total number of hours on a 

single report of use, provided pursuant 

to paragraph (g)(1) of this section, for 

which this type of reporting is used is 

below the maximum percentage set 

forth below for the relevant year: 

(A) 2011: 16%; 

(B) 2012: 14%; 

(C) 2013: 12%; 

(D) 2014: 10%; 

(E) 2015: 8%. 

(iii) To the extent that a Broadcaster 

chooses to report and pay for usage on 

an Aggregate Tuning Hours basis 

pursuant to paragraph (g)(3) of this 

section, the Broadcaster shall 

(A) Report and pay based on the 

assumption that the number of sound 

recordings performed during the 

relevant programming hours is 12 per 

hour; 

(B) Pay royalties (or recoup minimum 

fees) at the per-performance rates 

provided in § 380.12 on the basis of 

paragraph (g)(3)(iii)(A) of this section; 

(C) Include Aggregate Tuning Hours 

in reports of use; and 

(D) Include in reports of use complete 

playlist information for usage reported 

on the basis of Aggregate Tuning Hours. 

(h) Election of Small Broadcaster 

Status. To be eligible for the reporting 

waiver for Small Broadcasters with 

respect to any particular channel in a 

given year, a Broadcaster must satisfy 

the definition set forth in § 380.11 and 

must submit to the Collective a 

completed and signed election form 

(available on the SoundExchange Web 

site at http://www.soundexchange.com) 

by no later than January 31 of the 

applicable year. Even if a Broadcaster 

has once elected to be treated as a Small 

Broadcaster, it must make a separate, 

timely election in each subsequent year 

in which it wishes to be treated as a 

Small Broadcaster. 

(i) Distribution of royalties. (1) The 

Collective shall promptly distribute 

royalties received from Broadcasters to 

Copyright Owners and Performers, or 

their designated agents, that 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 and pay the correct recipient. 

The Collective shall distribute royalties 

on a basis that values all performances 

by a Broadcaster equally based upon 

information provided under the report 

of use requirements for Broadcasters 

contained in § 370.4 of this chapter and 

this subpart, except that in the case of 

electing Small Broadcasters, the 

Collective shall distribute royalties 

based on proxy usage data in 

accordance with a methodology adopted 

by the Collective’s Board of Directors. 

(2) If the Collective is unable to locate 

a Copyright Owner or Performer entitled 

to a distribution of royalties under 

paragraph (g)(1) of this section within 3 

years from the date of payment by a 

Broadcaster, such distribution may be 

first applied to the costs directly 

attributable to the administration of that 

distribution. The foregoing shall apply 

notwithstanding the common law or 

statutes of any State. 

(j) Retention of records. Books and 

records of a Broadcaster 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. 

§ 380.14 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 Broadcaster submitting the 

statement. 

(b) Exclusion. Confidential 

Information shall not include 

documents or information that at the 

time of delivery to the Collective are 

public knowledge. 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. 

(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 Broadcaster’s statement of account 

pursuant to § 380.15 or on behalf of a 

Copyright Owner or Performer with 

respect to the verification of royalty 

distributions pursuant to § 380.16; 

(3) Copyright Owners and Performers, 

including their designated agents, 

whose works have been used under the 


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

112(e) and 114(f) by the Broadcaster 

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(f) 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. 

(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 not less than the same 

degree of security used to protect 

Confidential Information or similarly 

sensitive information belonging to the 

Collective or person. 

§ 380.15 Verification of royalty payments. 

(a) General. This section prescribes 

procedures by which the Collective may 

verify the royalty payments made by a 

Broadcaster. 

(b) Frequency of verification. The 

Collective may conduct a single audit of 

a Broadcaster, 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. The 

Collective must file with the Copyright 

Royalty Board a notice of intent to audit 

a particular Broadcaster, 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 

Broadcaster to be audited. 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. The Broadcaster 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) Acceptable verification procedure. 

An audit, including underlying 

paperwork, which was performed in the 

ordinary course of business according to 

generally accepted auditing standards 

by an independent and Qualified 

Auditor, shall serve as an acceptable 

verification procedure for all parties 

with respect to the information that is 

within the scope of the audit. 

(f) 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 the Broadcaster being 

audited in order to remedy any factual 

errors and clarify any issues relating to 

the audit; Provided that an appropriate 

agent or employee of the Broadcaster 

reasonably cooperates with the auditor 

to remedy promptly any factual error or 

clarify any issues raised by the audit. 

(g) 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 the Broadcaster shall, in 

addition to paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 

§ 380.16 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 Board 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) Acceptable verification procedure. 

An audit, including underlying 

paperwork, which was performed in the 

ordinary course of business according to 

generally accepted auditing standards 

by an independent and Qualified 

Auditor, shall serve as an acceptable 

verification procedure for all parties 

with respect to the information that is 

within the scope of the audit. 

(f) 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. 

(g) 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. 

§ 380.17 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. 


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

notwithstanding the common law or 

statutes of any State. 

4. Add Subpart C to read as follows: 

Subpart C—Noncommercial Educational 

Webcasters 

Sec. 

380.20 General. 

380.21 Definitions. 

380.22 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

380.23 Terms for making payment of 

royalty fees and statements of account. 

380.24 Confidential information. 

380.25 Verification of royalty payments. 

380.26 Verification of royalty distributions. 

380.27 Unclaimed funds. 

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

804(b)(3). 

Subpart C—Noncommercial 

Educational Webcasters 

§ 380.20 General. 

(a) Scope. This subpart establishes 

rates and terms, including requirements 

for royalty payments, recordkeeping and 

reports of use, for the public 

performance of sound recordings in 

certain digital transmissions made by 

Noncommercial Educational Webcasters 

as set forth herein in accordance with 

the provisions of 17 U.S.C. 114, and the 

making of Ephemeral Recordings by 

Noncommercial Educational Webcasters 

as set forth herein in accordance with 

the provisions of 17 U.S.C. 112(e), 

during the period January 1, 2011, 

through December 31, 2015. 

(b) Legal compliance. Noncommercial 

Educational Webcasters 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 not 

inconsistent with the rates and terms set 

forth herein. However, if a 

Noncommercial Educational Webcaster 

is also eligible for any other rates and 

terms for its Eligible Transmissions 

during the period January 1, 2011, 

through December 31, 2015, it may, by 

written notice to the Collective in a form 

to be provided by the Collective, elect 

to be subject to such other rates and 

terms rather than the rates and terms 

specified in this subpart. If a single 

educational institution has more than 

one station making Eligible 

Transmissions, each such station may 

determine individually whether it elects 

to be subject to this subpart. 

(c) Relationship to voluntary 

agreements. Nothwithstanding the 

royalty rates and terms established in 

this subpart, the rates and terms of any 

license agreements entered into by 

Copyright Owners and digital audio 

services shall apply in lieu of the rates 

and terms of this subpart to 

transmissions within the scope of such 

agreements. 

§ 380.21 Definitions. 

For purposes of this subpart, the 

following definitions shall apply: 

ATH or Aggregate Tuning Hours 

means the total hours of programming 

that a Noncommercial Educational 

Webcaster has transmitted during the 

relevant period to all listeners within 

the United States over all channels and 

stations that provide audio 

programming consisting, in whole or in 

part, of Eligible Transmissions, 

including from any archived programs, 

less the actual running time of any 

sound recordings for which the 

Noncommercial Educational Webcaster 

has obtained direct licenses apart from 

17 U.S.C. 114(d)(2) or which do not 

require a license under United States 

copyright law. By way of example, if a 

Noncommercial Educational Webcaster 

transmitted one hour of programming to 

10 simultaneous listeners, the 

Noncommercial Educational 

Webcaster’s Aggregate Tuning Hours 

would equal 10. If three minutes of that 

hour consisted of transmission of a 

directly licensed recording, the 

Noncommercial Educational 

Webcaster’s Aggregate Tuning Hours 

would equal 9 hours and 30 minutes. As 

an additional example, if one listener 

listened to a Noncommercial 

Educational Webcaster for 10 hours (and 

none of the recordings transmitted 

during that time was directly licensed), 

the Noncommercial Educational 

Webcaster’s Aggregate Tuning Hours 

would equal 10. 

Collective is the collection and 

distribution organization that is 

designated by the Copyright Royalty 

Judges. For the 2011–2015 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). 

Eligible Transmission means an 

eligible nonsubscription transmission 

made by a Noncommercial Educational 

Webcaster over the Internet. 

Ephemeral Recording is a 

phonorecord created for the purpose of 

facilitating an Eligible Transmission of a 

public performance of a sound 

recording under a statutory license in 

accordance with 17 U.S.C. 114(f), and 

subject to the limitations specified in 17 

U.S.C. 112(e). 

Noncommercial Educational 

Webcaster means Noncommercial 

Webcaster (as defined in 17 U.S.C. 

114(f)(5)(E)(i)) that 

(1) Has obtained a compulsory license 

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

implementing regulations therefor to 

make Eligible Transmissions and related 

ephemeral recordings; 

(2) Complies with all applicable 

provisions of Sections 112(e) and 114 

and applicable regulations; 

(3) Is directly operated by, or is 

affiliated with and officially sanctioned 

by, and the digital audio transmission 

operations of which are staffed 

substantially by students enrolled at, a 

domestically accredited primary or 

secondary school, college, university or 

other post-secondary degree-granting 

educational institution; and 

(4) Is not a ‘‘public broadcasting 

entity’’ (as defined in 17 U.S.C. 118(g)) 

qualified to receive funding from the 

Corporation for Public Broadcasting 

pursuant to the criteria set forth in 47 

U.S.C. 396. 

Performance is each instance in 

which any portion of a sound recording 

is publicly performed to a listener by 

means of a digital audio transmission 

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

single track from a compact disc to one 

listener) but excluding the following: 

(1) A performance of a sound 

recording that does not require a license 

(e.g., a sound recording that is not 

copyrighted); 

(2) A performance of a sound 

recording for which the Noncommercial 

Educational Webcaster has previously 

obtained a license from the Copyright 

Owner of such sound recording; and 

(3) An incidental performance that 

both: 

(i) 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 performances during 

news, talk and sports programming, 

brief background performances during 

disk jockey announcements, brief 

performances during commercials of 

sixty seconds or less in duration, or 

brief performances during sporting or 

other public events; and 

(ii) Other than ambient music that is 

background at a public event, 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). 

Performers means the independent 

administrators identified in 17 U.S.C. 

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

identified in 17 U.S.C. 114(g)(2)(D). 


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Qualified Auditor is a Certified Public 

Accountant. 

§ 380.22 Royalty fees for the public 

performance of sound recordings and for 

ephemeral recordings. 

(a) Minimum fee. Each 

Noncommercial Educational Webcaster 

shall pay an annual, nonrefundable 

minimum fee for $500 (the ‘‘Minimum 

Fee’’) for each of its individual channels, 

including each of its individual side 

channels, and each of its individual 

stations, through which (in each case) it 

makes Eligible Transmissions, for each 

calendar year it makes Eligible 

Transmissions subject to this subpart. 

For clarity, each individual stream (e.g., 

HD radio side channels, different 

stations owned by a single licensee) will 

be treated separately and be subject to 

a separate minimum. In addition, a 

Noncommercial Educational Webcaster 

electing the reporting waiver described 

in § 380.23(g)(1), shall pay a $100 

annual fee (the ‘‘Proxy Fee’’) to the 

Collective. 

(b) Additional usage fees. If, in any 

month, a Noncommercial Educational 

Webcaster makes total transmissions in 

excess of 159,140 Aggregate Tuning 

Hours on any individual channel or 

station, the Noncommercial Educational 

Webcaster shall pay additional usage 

fees (‘‘Usage Fees’’) for the Eligible 

Transmissions it makes on that channel 

or station after exceeding 159,140 total 

ATH at the following per-performance 

rates: 

(1) 2011: $0.0017; 

(2) 2012: $0.0020; 

(3) 2013: $0.0022; 

(4) 2014: $0.0023; 

(5) 2015: $0.0025. 

(6) For a Noncommercial Educational 

Webcaster unable to calculate actual 

total performances and not required to 

report ATH or actual total performances 

under § 380.23(g)(3), the 

Noncommercial Educational Webcaster 

may pay its Usage Fees on an ATH 

basis, provided that the Noncommercial 

Educational Webcaster shall pay its 

Usage Fees at the per-performance rates 

provided in paragraphs (b)(1) through 

(5) of this section based on the 

assumption that the number of sound 

recordings performed is 12 per hour. 

The Collective may distribute royalties 

paid on the basis of ATH hereunder in 

accordance with its generally applicable 

methodology for distributing royalties 

paid on such basis. In addition, and for 

the avoidance of doubt, a 

Noncommercial Educational Webcaster 

offering more than one channel or 

station shall pay Usage Fees on a perchannel or -station basis. 

(c) Ephemeral royalty. The royalty 

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

ephemeral reproductions made by a 

Noncommercial Educational Webcaster 

and covered by this subpart is deemed 

to be included within the royalty 

payments set forth in paragraphs (b)(1) 

through (5) of this section and to equal 

the percentage of such royalty payments 

determined by the Copyright Royalty 

Judges for other webcasting in § 380.3. 

§ 380.23 Terms for making payment of 

royalty fees and statements of account. 

(a) Payment to the Collective. A 

Noncommercial Educational Webcaster 

shall make the royalty payments due 

under § 380.22 to the Collective. 

(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 from Noncommercial 

Educational Webcasters due under 

§ 380.22 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 paragraph (b)(2) of this section, such 

representatives shall file a petition with 

the Copyright Royalty Board 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 

such 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) Minimum fee. Noncommercial 

Educational Webcasters shall submit the 

Minimum Fee, and Proxy Fee if 

applicable, accompanied by a statement 

of account, by January 31st of each 

calendar year, except that payment of 

the Minimum Fee, and Proxy Fee if 

applicable, by a Noncommercial 

Educational Webcaster that was not 

making Eligible Transmissions or 

Ephemeral Recordings pursuant to the 

licenses in 17 U.S.C. 114 and/or 17 

U.S.C. 112(e) as of said date but begins 

doing so thereafter shall be due by the 

45th day after the end of the month in 

which the Noncommercial Educational 

Webcaster commences doing so. 

Payments of minimum fees must be 

accompanied by a certification, signed 

by an officer or another duly authorized 

faculty member or administrator of the 

institution with which the 

Noncommercial Educational Webcaster 

is affiliated, on a from provided by the 

Collective, that the Noncommercial 

Educational Webcaster. 

(1) Qualifies as a Noncommercial 

Educational Webcaster for the relevant 

year; and 

(2) Did not exceed 159,140 total ATH 

in any month of the prior year for which 

the Noncommercial Educational 

Webcaster did not submit a statement of 

account and pay any required Usage 

Fees. At the same time the 

Noncommercial Educational Webcaster 

must identify all its stations making 

Eligible Transmissions and identify 

which of the reporting options set forth 

in paragraph (g) of this section it elects 

for the relevant year (provided that it 

must be eligible for the option it elects). 

(d) Usage fees. In addition to its 

obligations pursuant to paragraph (c) of 

this section, a Noncommercial 

Educational Webcaster must make 

monthly payments of Usage Fees where 

required by § 380.22(b), and provide 

statements of account to accompany 

these payments, for each month on the 

45th day following the month in which 

the Eligible Transmissions subject to the 

Usage Fees and statements of account 

were made. All monthly payments shall 

be rounded to the nearest cent. 

(e) Late fees. A Noncommercial 

Educational Webcaster shall pay a late 

fee for each instance in which any 

payment, any statement of account or 

any report of use is not received by the 

Collective in compliance with the 

applicable regulations by the due date. 

The amount of the late fee shall be 1.5% 

of the late payment, or 1.5% of the 

payment associated with a late 

statement of account or report of use, 

per month, compounded monthly for 

the balance due, or the highest lawful 

rate, whichever is lower. The late fee 

shall accrue from the due date of the 

payment, statement of account or report 

of use until a fully compliant payment, 

statement of account or report of use (as 

applicable) is received by the Collective, 

provided that, in the case of a timely 

provided but noncompliant statement of 

account or report of use, the Collective 

has notified the Noncommercial 

Educational Webcaster within 90 days 


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regarding any noncompliance that is 

reasonably evident to the Collective. 

(f) Statements of account. Any 

payment due under § 380.22 shall be 

accompanied by a corresponding 

statement of account. A statement of 

account shall contain the following 

information: 

(1) The name of the Noncommercial 

Educational Webcaster, exactly as it 

appears on the notice of use, and if the 

statement of account covers a single 

station only, the call letters or name of 

the station; 

(2) Such information as is necessary 

to calculate the accompanying royalty 

payment as prescribed in this subpart; 

(3) The name, address, business title, 

telephone number, facsimile number (if 

any), electronic mail address (if any) 

and other contact information of the 

person to be contacted for information 

or questions concerning the content of 

the statement of account; 

(4) The handwritten signature of an 

officer or another duly authorized 

faculty member or administrator of the 

applicable educational institution; 

(5) The printed or typewritten name 

of the person signing the statement of 

account; 

(6) The date of signature; 

(7) The title or official position held 

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 officer or other duly 

authorized faculty member or administrator 

of the applicable educational institution, 

have examined this statement of account and 

hereby state that it is true, accurate, and 

complete to my knowledge after reasonable 

due diligence. 

(g) Reporting by Noncommercial 

Educational Webcasters in general—(1) 

Reporting waiver. In light of the unique 

business and operational circumstances 

currently existing with respect to 

Noncommercial Educational 

Webcasters, and for the purposes of this 

subpart only, a Noncommercial 

Educational Webcaster that did not 

exceed 55,000 total ATH for any 

individual channel or station for more 

than one calendar month in the 

immediately preceding calendar year 

and that does not expect to exceed 

55,000 total ATH for any individual 

channel or station for any calendar 

month during the applicable calendar 

year may elect to pay to the Collective 

a nonrefundable, annual Proxy Fee of 

$100 in lieu of providing reports of use 

for the calendar year pursuant to the 

regulations § 370.4 of this chapter. In 

addition, a Noncommercial Educational 

Webcaster that unexpectedly exceeded 

55,000 total ATH on one or more 

channels or stations for more than one 

month during the immediately 

preceding calendar year may elect to 

pay the Proxy Fee and receive the 

reporting waiver described in paragraph 

(g)(1) of this section during a calendar 

year, if it implements measures 

reasonably calculated to ensure that it 

will not make Eligible Transmissions 

exceeding 55,000 total ATH during any 

month of that calendar year. The Proxy 

Fee is intended to defray the 

Collective’s costs associated with this 

reporting waiver, including 

development of proxy usage data. The 

Proxy Fee shall be paid by the date 

specified in paragraph (c) of this section 

for paying the Minimum Fee for the 

applicable calendar year and shall be 

accompanied by a certification on a 

form provided by the Collective, signed 

by an officer or another duly authorized 

faculty member or administrator of the 

applicable educational institution, 

stating that the Noncommercial 

Educational Webcaster is eligible for the 

Proxy Fee option because of its past and 

expected future usage and, if applicable, 

has implemented measures to ensure 

that it will not make excess Eligible 

Transmissions in the future. 

(2) Sample-basis reports. A 

Noncommercial Educational Webcaster 

that did not exceed 159,140 total ATH 

for any individual channel or station for 

more than one calendar month in the 

immediately preceding calendar year 

and that does not expect to exceed 

159,140 total ATH for any individual 

channel or station for any calendar 

month during the applicable calendar 

year may elect to provide reports of use 

on a sample basis (two weeks per 

calendar quarter) in accordance with the 

regulations at § 370.4 of this chapter, 

except that, notwithstanding 

§ 370.4(d)(2)(vi), such an electing 

Noncommercial Educational Webcaster 

shall not be required to include ATH or 

actual total performances and may in 

lieu thereof provide channel or station 

name and play frequency. 

Notwithstanding the foregoing, a 

Noncommercial Educational Webcaster 

that is able to report ATH or actual total 

performances is encouraged to do so. 

These reports of use shall be submitted 

to the Collective no later than January 

31st of the year immediately following 

the year to which they pertain. 

(3) Census-basis reports. If any of the 

following three conditions is satisfied, a 

Noncommercial Educational Webcaster 

must report pursuant to paragraph (g)(3) 

of this section: 

(i) The Noncommercial Educational 

Webcaster exceeded 159,140 total ATH 

for any individual channel or station for 

more than one calendar month in the 

immediately preceding calendar year; 

(ii) The Noncommercial Educational 

Webcaster expects to exceed 159,140 

total ATH for any individual channel or 

station for any calendar month in the 

applicable calendar year; or 

(iii) The Noncommercial Educational 

Webcaster otherwise does not elect to be 

subject to paragraphs (g)(1) or (2) of this 

section. A Noncommercial Educational 

Webcaster required to report pursuant to 

paragraph (g)(3) of this section shall 

provide reports of use to the Collective 

quarterly on a census reporting basis 

(i.e., reports of use shall include every 

sound recording performed in the 

relevant quarter), containing 

information otherwise complying with 

applicable regulations (but no less 

information than required by § 370.4 of 

this chapter), except that, 

notwithstanding § 370.4(d)(2)(vi), such a 

Noncommercial Educational Webcaster 

shall not be required to include ATH or 

actual total performances, and may in 

lieu thereof provide channel or station 

name and play frequency, during the 

first calendar year it reports in 

accordance with paragraph (g)(3) of this 

section. For the avoidance of doubt, 

after a Noncommercial Educational 

Webcaster has been required to report in 

accordance with paragraph (g)(3) of this 

section for a full calendar year, it must 

thereafter include ATH or actual total 

performances in its reports of use. All 

reports of use under paragraph (g)(3) of 

this section shall be submitted to the 

Collective no later than the 45th day 

after the end of each calendar quarter. 

(h) Distribution of royalties. (1) The 

Collective shall promptly distribute 

royalties received from Noncommercial 

Educational Webcasters to Copyright 

Owners and Performers, or their 

designated agents, that 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 and pay the 

correct recipient. The Collective shall 

distribute royalties on a basis that 

values all performances by a 

Noncommercial Educational Webcaster 

equally based upon the information 

provided under the report of use 

requirements for Noncommercial 

Educational Webcasters contained in 

§ 370.4 of this chapter and this subpart, 

except that in the case of 

Noncommercial Educational Webcasters 

that elect to pay a Proxy Fee in lieu of 

providing reports of use pursuant to 

paragraph (g)(1) of this section, the 

Collective shall distribute the aggregate 

royalties paid by electing 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
16386 Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 

Noncommercial Educational Webcasters 

based on proxy usage data in 

accordance with a methodology adopted 

by the Collective’s Board of Directors. 

(2) If the Collective is unable to locate 

a Copyright Owner or Performer entitled 

to a distribution of royalties under 

paragraph (h)(1) of this section within 3 

years from the date of payment by a 

Noncommercial Educational Webcaster, 

such distribution may first be applied to 

the costs directly attributable to the 

administration of that distribution. The 

foregoing shall apply notwithstanding 

the common law or statutes of any State. 

(i) Server logs. Noncommercial 

Educational Webcasters shall retain for 

a period of no less than three full 

calendar years server logs sufficient to 

substantiate all information relevant to 

eligibility, rate calculation and reporting 

under this subpart. To the extent that a 

third-party Web hosting or service 

provider maintains equipment or 

software for a Noncommercial 

Educational Webcaster and/or such 

third party creates, maintains, or can 

reasonably create such server logs, the 

Noncommercial Educational Webcaster 

shall direct that such server logs be 

created and maintained by said third 

party for a period of no less than three 

full calendar years and/or that such 

server logs be provided to, and 

maintained by, the Noncommercial 

Educational Webcaster. 

§ 380.24 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 Usage Fees 

paid, and any information pertaining to 

the statements of account reasonably 

designated as confidential by the 

Noncommercial Educational Webcaster 

submitting the statement. 

(b) Exclusion. Confidential 

Information shall not include 

documents or information that at the 

time of delivery to the Collective are 

public knowledge. 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. 

(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 Confidential 

Information; 

(2) An independent Qualified 

Auditor, subject to an appropriate 

confidentiality agreement, who is 

authorized to act on behalf of the 

Collective with respect to verification of 

a Noncommercial Educational 

Webcaster’s statement of account 

pursuant to § 380.25 or on behalf of a 

Copyright Owner or Performer with 

respect to the verification of royalty 

distributions pursuant to § 380.26; 

(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(f) by the Noncommercial 

Educational Webcaster 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(f) 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. 

(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. 

§ 380.25 Verification of royalty payments. 

(a) General. This section prescribes 

procedures by which the Collective may 

verify the royalty payments made by a 

Noncommercial Educational Webcaster. 

(b) Frequency of verification. The 

Collective may conduct a single audit of 

a Noncommercial Educational 

Webcaster, 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. The 

Collective must file with the Copyright 

Royalty Board a notice of intent to audit 

a particular Noncommercial Educational 

Webcaster, 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 Noncommercial Educational 

Webcaster to be audited. Any such audit 

shall be conducted by an independent 

Qualified Auditor identified in the 

notice and shall be binding on all 

parties. 

(d) Acquisition and retention of 

report. The Noncommercial Educational 

Webcaster 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) Acceptable verification procedure. 

An audit, including underlying 

paperwork, which was performed in the 

ordinary course of business according to 

generally accepted auditing standards 

by an independent Qualified Auditor, 

shall serve as an acceptable verification 

procedure for all parties with respect to 

the information that is within the scope 

of the audit. 

(f) 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 the Noncommercial 

Educational Webcaster being audited in 

order to remedy any factual errors and 

clarify any issues relating to the audit; 

Provided that an appropriate agent or 

employee of the Noncommercial 

Educational Webcaster reasonably 

cooperates with the auditor to remedy 

promptly any factual errors or clarify 

any issues raised by the audit. 

(g) 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 the Noncommercial 

Educational Webcaster shall, in addition 

to paying the amount of any 

underpayment, bear the reasonable costs 

of the verification procedure. 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 62 / Thursday, April 1, 2010 / Proposed Rules 16387 

§ 380.26 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 Board 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 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) Acceptable verification procedure. 

An audit, including underlying 

paperwork, which was performed in the 

ordinary course of business according to 

generally accepted auditing standards 

by an independent Qualified Auditor, 

shall serve as an acceptable verification 

procedure for all parties with respect to 

the information that is within the scope 

of the audit. 

(f) 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. 

(g) 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. 

§ 380.27 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 29, 2010. 

James Scott Sledge, 

Chief, U.S. Copyright Royalty Judge. 

[FR Doc. 2010–7368 Filed 3–31–10; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2007–1186–201013(b); 

FRL–9133–2] 

Approval and Promulgation of Air 

Quality Implementation Plan: 

Kentucky; Approval Section 110(a)(1) 

Maintenance Plan for the 1997 8-Hour 

Ozone Standard for the Owensboro 

Area; Limited Reopening of Comment 

Period 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; limited 

reopening of the comment period. 

SUMMARY: EPA is announcing a limited 

30-day reopening of the public comment 

period for the proposed rule entitled 

‘‘Approval and Promulgation of Air 

Quality Implementation Plan: Kentucky; 

Approval Section 110(a)(1) Maintenance 

Plan for the 1997 8–Hour Ozone 

Standard for the Owensboro Area,’’ for 

the purpose of limited public review 

and comment on supplemental 

information that was provided by the 

Commonwealth of Kentucky on July 15, 

2009, in support of the Owensboro Area 

110(a)(1) maintenance plan. The 

Owensboro, Kentucky Area consists of 

Daviess and a portion of Hancock 

Counties. The proposed rule was 

initially published in the Federal 

Register on January 20, 2010. The 

reason for this limited reopening of the 

comment period is that EPA has learned 

that supplemental information relating 

to projected emissions for the 

Owensboro Area that was referenced in 

the proposed rulemaking January 20, 

2010 (75 FR 3183) was inadvertently 

omitted from the electronic docket 

when that proposed rulemaking was 

published. EPA has since made that 

information available in the electronic 

docket and wants to ensure an 

opportunity for the public to comment 

on that information. The July 15, 2009, 

supplemental information can be 

viewed online at http:// 

www.regulations.gov using docket ID 

No. EPA–R04–OAR–2007–1186–0043. 

Thus, EPA is reopening the comment 

period for an additional thirty days, for 

the limited purpose of providing an 

opportunity for public comment only on 

the supplemental information added to 

the docket after publication of the 

proposed rulemaking. 

DATES: The comment period for the 

proposed rule published on January 20, 

2010 (75 FR 3183) is reopened. 

Comments must be received on or 

before May 3, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2007–1186, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: benjamin.lynorae@epa.gov. 

3. Fax: 404–562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2007–1186,’’ 

Regulatory Development Section, Air 

Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street, SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 


emcdonald on DSK2BSOYB1PROD with PROPOSALS-1