Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 489 

adequacy of the relief secured by the 

proposed Final Judgment, a court may 

not ‘‘make de novo determination of 

facts and issues.’’ United States v. W. 

Elec. Co., 993 F.2d 1572, 1577 (D.C. Cir. 

1993) (quotation marks omitted); see 

also Microsoft, 56 F.3d at 1460–62; 

United States v. Alcoa, Inc., 152 F. 

Supp. 2d 37, 40 (D.D.C. 2001); United 

States v. Enova Corp., 107 F. Supp. 2d 

10, 16 (D.D.C. 2000); InBev, 2009 U.S. 

Dist. LEXIS 84787, at *3. Instead, ‘‘[t]he 

balancing of competing social and 

political interests affected by a proposed 

antitrust consent decree must be left, in 

the first instance, to the discretion of the 

Attorney General.’’ W. Elec. Co., 993 

F.2d at 1577 (quotation marks omitted). 

‘‘The court should bear in mind the 

flexibility of the public interest inquiry: 

the court’s function is not to determine 

whether the resulting array of rights and 

liabilities is one that will best serve 

society, but only to confirm that the 

resulting settlement is within the 

reaches of the public interest.’’ 

Microsoft, 56 F.3d at 1460 (quotation 

marks omitted); see also United States v. 

Deutsche Telekom AG, No. 19–2232 

(TJK), 2020 WL 1873555, at *7 (D.D.C. 

Apr. 14, 2020). More demanding 

requirements would ‘‘have enormous 

practical consequences for the 

government’s ability to negotiate future 

settlements,’’ contrary to congressional 

intent. Microsoft, 56 F.3d at 1456. ‘‘The 

Tunney Act was not intended to create 

a disincentive to the use of the consent 

decree.’’ Id. 

The United States’ predictions about 

the efficacy of the remedy are to be 

afforded deference by the Court. See, 

e.g., Microsoft, 56 F.3d at 1461 

(recognizing courts should give ‘‘due 

respect to the Justice Department’s . . . 

view of the nature of its case’’); United 

States v. Iron Mountain, Inc., 217 F. 

Supp. 3d 146, 152–53 (D.D.C. 2016) (‘‘In 

evaluating objections to settlement 

agreements under the Tunney Act, a 

court must be mindful that [t]he 

government need not prove that the 

settlements will perfectly remedy the 

alleged antitrust harms[;] it need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’ (internal citations omitted)); 

United States v. Republic Servs., Inc., 

723 F. Supp. 2d 157, 160 (D.D.C. 2010) 

(noting ‘‘the deferential review to which 

the government’s proposed remedy is 

accorded’’); United States v. ArcherDaniels-Midland Co., 272 F. Supp. 2d 1, 

6 (D.D.C. 2003) (‘‘A district court must 

accord due respect to the government’s 

prediction as to the effect of proposed 

remedies, its perception of the market 

structure, and its view of the nature of 

the case.’’). The ultimate question is 

whether ‘‘the remedies [obtained by the 

Final Judgment are] so inconsonant with 

the allegations charged as to fall outside 

of the ‘reaches of the public interest.’ ’’ 

Microsoft, 56 F.3d at 1461 (quoting W. 

Elec. Co., 900 F.2d at 309). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459; see also U.S. Airways, 38 

F. Supp. 3d at 75 (noting that the court 

must simply determine whether there is 

a factual foundation for the 

government’s decisions such that its 

conclusions regarding the proposed 

settlements are reasonable); InBev, 2009 

U.S. Dist. LEXIS 84787, at *20 (‘‘[T]he 

‘public interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged.’’). Because the 

‘‘court’s authority to review the decree 

depends entirely on the government’s 

exercising its prosecutorial discretion by 

bringing a case in the first place,’’ it 

follows that ‘‘the court is only 

authorized to review the decree itself,’’ 

and not to ‘‘effectively redraft the 

complaint’’ to inquire into other matters 

that the United States did not pursue. 

Microsoft, 56 F.3d at 1459–60. 

In its 2004 amendments to the APPA, 

Congress made clear its intent to 

preserve the practical benefits of using 

judgments proposed by the United 

States in antitrust enforcement, Public 

Law 108–237, 221, and added the 

unambiguous instruction that ‘‘[n]othing 

in this section shall be construed to 

require the court to conduct an 

evidentiary hearing or to require the 

court to permit anyone to intervene.’’ 15 

U.S.C. 16(e)(2); see also U.S. Airways, 

38 F. Supp. 3d at 76 (indicating that a 

court is not required to hold an 

evidentiary hearing or to permit 

intervenors as part of its review under 

the Tunney Act). This language 

explicitly wrote into the statute what 

Congress intended when it first enacted 

the Tunney Act in 1974. As Senator 

Tunney explained: ‘‘[t]he court is 

nowhere compelled to go to trial or to 

engage in extended proceedings which 

might have the effect of vitiating the 

benefits of prompt and less costly 

settlement through the consent decree 

process.’’ 119 Cong. Rec. 24,598 (1973) 

(statement of Sen. Tunney). ‘‘A court 

can make its public interest 

determination based on the competitive 

impact statement and response to public 

comments alone.’’ U.S. Airways, 38 F. 

Supp. 3d at 76 (citing Enova Corp., 107 

F. Supp. 2d at 17). 

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment. 

Date: December 22, 2021. 

Respectfully submitted, 

/s/ Kenneth A. Libby, 

Kenneth A. Libby, 

Special Attorney, U.S. Department of Justice, 

Antitrust Division, c/o Federal Trade 

Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580, Phone: (202) 326– 

2694, Email: klibby@ftc.gov. 

[FR Doc. 2021–28539 Filed 1–4–22; 8:45 am] 

BILLING CODE 4410–11–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Proposed First 

Amendment To Consent Decree Under 

the Clean Water Act 

On December 29, 2021, the 

Department of Justice lodged a proposed 

First Amendment to Consent Decree 

with the United States District Court for 

the Southern District of Ohio in the 

lawsuit entitled United States and the 

State of Ohio v. City of Middletown, 

Ohio, Civil Action No. 18–cv–90. 

The Complaint in the United States’ 

lawsuit sought civil penalties and 

injunctive relief for alleged violations of 

the Clean Water Act (‘‘CWA’’) relating to 

the City of Middletown’s sewer system 

in Middletown, Ohio. The Complaint 

alleged that: (1) Various discharges from 

Middletown’s wastewater treatment 

plant violated the CWA by exceeding 

the effluent limitations in Middletown’s 

permits; (2) Middletown’s combined 

sewer overflow discharges violated the 

CWA by impairing downstream uses in 

the Great Miami River; (3) Middletown 

illegally discharged untreated sewage 

from its combined sewer overflow 

outfalls during dry weather; and (4) 

Middletown violated the CWA by 

failing to monitor and/or report the 

monitoring results for its outfalls as 

required. 

A Consent Decree resolving the claims 

in the Complaint was entered by the 

Court on April 12, 2018. The Consent 

Decree requires that Middletown, 

among other things, implement a Long 

Term Control Plan to reduce the 

discharges of combined stormwater and 

sanitary sewage from the portion of 

Middletown’s sewer system known as 


TKELLEY on DSK125TN23PROD with NOTICE 
490 Federal Register / Vol. 87, No. 3 / Wednesday, January 5, 2022 / Notices 

1The Judges commenced a proceeding to 

determine the 2019–2023 rates and terms in 2017. 

See 82 FR 143 (Jan. 3, 2017). 

the combined sewer system. The current 

LTCP, which was included with the 

Consent Decree as Appendix A, 

includes a number of combined sewer 

overflow control measures. During the 

detailed design phase of one of these 

measures following entry of the Consent 

Decree, Middletown discovered 

technical difficulties in carrying out the 

project as originally planned. The 

proposed First Amendment to Consent 

Decree substitutes an alternative project 

to convert a portion of Middletown’s 

combined sewer system into a 

stormwater-only system. 

The publication of this notice opens 

a period for public comment on the First 

Amendment to Consent Decree. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and should refer to United 

States and the State of Ohio v. City of 

Middletown, Ohio, D.J. Ref. No. 90–5–1– 

1–08978. All comments must be 

submitted no later than thirty (30) days 

after the publication date of this notice. 

Comments may be submitted either by 

email or by mail: 

To submit 

comments: Send them to: 

By email ....... pubcomment-ees.enrd@

usdoj.gov. 

By mail ......... Assistant Attorney General, 

U.S. DOJ—ENRD, P.O. 

Box 7611, Washington, 

D.C. 20044–7611. 

During the public comment period, 

the First Amendment to Consent Decree 

may be examined and downloaded at 

this Justice Department website: https:// 

www.justice.gov/enrd/consent-decrees. 

We will provide a paper copy of the 

First Amendment to Consent Decree 

upon written request and payment of 

reproduction costs. Please mail your 

request and payment to: Consent Decree 

Library, U.S. DOJ—ENRD, P.O. Box 

7611, Washington, DC 20044–7611. 

Please enclose a check or money order 

for $2.50 (25 cents per page 

reproduction cost) payable to the United 

States Treasury. 

Patricia McKenna, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 2021–28574 Filed 1–4–22; 8:45 am] 

BILLING CODE P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

[Docket No. 21–CRB–0013–BER (2024– 

2028)] 

Determination of Royalty Rates and 

Terms for Making Ephemeral Copies of 

Sound Recordings for Transmission to 

Business Establishments (Business 

Establishments IV) 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Notice announcing 

commencement of proceeding with 

request for Petitions to Participate. 

SUMMARY: The Copyright Royalty Judges 

(Judges) announce commencement of a 

proceeding to determine reasonable 

royalty rates and terms for the recording 

of ephemeral copies of sound recordings 

to facilitate digital audio transmissions 

of those sound recordings to business 

establishments pursuant to the 

limitation on exclusive rights specified 

by the Copyright Act. The royalty rates 

and terms the Judges determine in this 

proceeding will apply during the period 

beginning January 1, 2024, and ending 

December 31, 2028. The Judges also 

announce the date by which a party 

wishing to participate in the rate 

determination proceeding must file its 

Petition to Participate and pay the 

accompanying $150 filing fee. 

DATES: Petitions to Participate and the 

filing fee are due no later than February 

4, 2022. 

ADDRESSES: The petition to participate 

form is available online in eCRB, the 

Copyright Royalty Board’s online 

electronic filing application, at https:// 

app.crb.gov/. 

Instructions: The petition to 

participate process has been simplified. 

Interested parties file a petition to 

participate by completing and filing the 

petition to participate form in eCRB and 

paying the fee in eCRB. Do not upload 

a petition to participate document. 

Docket: For access to the docket to 

read submitted documents, go to eCRB, 

the Copyright Royalty Board’s electronic 

filing and case management system at 

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

docket number 21–CRB–0013–BER 

(2024–2028). 

FOR FURTHER INFORMATION CONTACT: 

Anita Blaine, CRB Program Specialist, 

(202) 707–7658, crb@loc.gov. 

SUPPLEMENTARY INFORMATION: The 

Copyright Act provides that the 

Copyright Royalty Judges (Judges) 

commence a proceeding every fifth 

year 1 to determine royalty rates and 

terms for the recording of ephemeral 

copies of sound recordings pursuant to 

the statutory license in 17 U.S.C. 

112(e)(1) to facilitate digital audio 

transmissions of those sound recordings 

to business establishments pursuant to 

the limitation on exclusive rights 

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

See 17 U.S.C. 804(b)(2). This notice 

commences the rate determination 

proceeding for the license period 2024– 

2028, inclusive. Section 

803(b)(1)(A)(i)(II) directs the Judges to 

publish in the Federal Register a notice 

commencing this proceeding by no later 

than January 5, 2022. 

Petitions To Participate 

Parties with a significant interest in 

the outcome of the ‘‘business 

establishments’’ royalty rate proceeding 

must provide the information required 

by § 351.1(b) of the Judges’ regulations 

by completing and filing the Petition to 

Participate form in eCRB. Parties must 

pay the $150 filing fee when filing each 

Petition to Participate form. 37 CFR 

351.1(b). Parties must use the form in 

eCRB instead of uploading a document. 

Only attorneys who are admitted to 

the bar in one or more states or the 

District of Columbia and are members in 

good standing will be allowed to 

represent parties before the Judges. Only 

an individual may represent herself or 

himself and appear without legal 

counsel. 37 CFR 303.2. 

Dated: December 16, 2021. 

Suzanne M. Barnett, 

Chief Copyright Royalty Judge. 

[FR Doc. 2021–27669 Filed 1–4–22; 8:45 am] 

BILLING CODE 1410–72–P 

NATIONAL FOUNDATION ON THE 

ARTS AND THE HUMANITIES 

National Endowment for the Arts 

Subject 60-Day Notice for the 

‘‘Program and Event Feedback Surveys 

for the Creative Forces®: NEA Military 

Healing Arts Network Community Arts 

Engagement Subgranting Program’’ 

Proposed Collection; Comment 

Request 

AGENCY: National Endowment for the 

Arts. 

ACTION: Notice. 

SUMMARY: The National Endowment for 

the Arts (NEA), as part of its continuing 

effort to reduce paperwork and 


TKELLEY on DSK125TN23PROD with NOTICE