Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 33093 

1SoundCloud Operations Inc. withdrew from the 

proceeding on May 21, 2021. 

2 David Powell and Brian Zisk filed petitions to 

participate in this proceeding; neither filed a 

Written Direct Statement. 

3The participants who filed the motion are the 

‘‘Copyright Owners’’ (NMPA and NSAI) and the 

‘‘Record Company Participants’’ (Sony Music 

Entertainment, UMG Recordings, Inc. and Warner 

Music Group Corp.). Motion at 1. 

4Subpart B refers to subpart B, part 385, 

subchapter E, chapter III, 37 CFR, the regulations 

Continued 

the charitable gaming operation’s 

financial information, and after such 

review, the tribe or TGRA concludes 

that the charitable gaming operation 

conducted the gaming in a manner that 

protected the integrity of the games 

offered and safeguarded the assets used 

in connection with the gaming 

operation, and the charitable gaming 

operation expended net gaming 

revenues in a manner consistent with 

IGRA, NIGC regulations, the tribe’s 

gaming ordinance or resolution, and the 

tribe’s gaming regulations. 

(2) If the tribe or TGRA does not or 

cannot provide the NIGC with the 

certification required by paragraph 

(f)(1)(v) of this section within 30 days of 

the gaming operation’s fiscal year end, 

the gaming operation must otherwise 

comply with the annual audit 

requirement of paragraph (b) of this 

section. 

(3) The tribe or TGRA may impose 

additional financial reporting 

requirements on gaming operations that 

otherwise qualify under this paragraph 

(f). 

(4) If the Chair of the NIGC has reason 

to believe that the assets of a charitable 

operation are not being appropriately 

safeguarded or the revenues are being 

misused under IGRA, the Chair may, at 

his or her discretion, require any gaming 

operation subject to this paragraph (f) to 

submit additional information or 

comply with the annual audit 

requirement of paragraph (b) of this 

section. 

(5) This paragraph (f) does not affect 

other requirements of IGRA and NIGC 

regulations, including, but not limited 

to, fees and quarterly fee statements (25 

U.S.C. 2717; 25 CFR part 514); 

requirements for revenue allocation 

plans (25 U.S.C. 2710(b)(3)); 

requirements for individually-owned 

gaming (25 U.S.C. 2710(b)(4), (d); 25 

CFR 522.10); minimum internal control 

standards for Class II gaming and 

agreed-upon procedures reports (25 CFR 

part 543); background and licensing for 

primary management officials and key 

employees of a gaming operation (25 

U.S.C. 2710(b)(2)(F); 25 CFR parts 556, 

558); and facility licenses (25 CFR part 

559). 

Dated: May 18, 2022. 

E. Sequoyah Simermeyer, 

Chairman. 

Jeannie Hovland, 

Vice Chair. 

[FR Doc. 2022–11482 Filed 5–31–22; 8:45 am] 

BILLING CODE 7565–01–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 385 

[Docket No. 21–CRB–0001–PR (2023–2027)] 

Determination of Rates and Terms for 

Making and Distributing Phonorecords 

(Phonorecords IV) 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Proposed rule. 

SUMMARY: The Copyright Royalty Judges 

publish for comment proposed 

regulations that set rates and terms 

applicable during the period beginning 

January 1, 2023, and ending December 

31, 2027, for the section 115 statutory 

license for making and distributing 

certain configurations of phonorecords 

of nondramatic musical works. 

DATES: Comments and objections, if any, 

are due no later than July 1, 2022. 

ADDRESSES: You may send comments, 

identified by docket number 21–CRB– 

0001–PR (2023–2027), by filing online 

through eCRB at https://app.crb.gov. 

Instructions: To send your comment 

through eCRB, if you don’t have a user 

account, you will first need to register 

for an account and wait for your 

registration to be approved. Approval of 

user accounts is only available during 

business hours. Once you have an 

approved account, you can only sign in 

and file your comment after setting up 

multi-factor authentication, which can 

be done at any time of day. All 

comments must include the Copyright 

Royalty Board name and the docket 

number for this proposed rule. All 

properly filed comments will appear 

without change in eCRB at https://

app.crb.gov, including any personal 

information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to eCRB at 

https://app.crb.gov and perform a case 

search for docket 21–CRB–0001–PR 

(2023–2027). 

FOR FURTHER INFORMATION CONTACT: 

Anita Brown, CRB Program Specialist, 

at 202–707–7658 or crb@loc.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 115 of the Copyright Act, title 

17 of the United States Code, requires a 

copyright owner of a nondramatic 

musical work to grant a license (also 

known as the ‘‘mechanical’’ compulsory 

license) to any person who wants to 

make and distribute phonorecords of 

that work, provided that the copyright 

owner has allowed phonorecords of the 

work to be produced and distributed, 

and that the licensee complies with the 

statute and regulations. In addition to 

the production or distribution of 

physical phonorecords (compact discs, 

vinyl, cassette tapes, and the like), 

section 115 applies to digital 

transmissions of phonorecords, 

including permanent digital downloads 

and ringtones. 

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 section 115 license. 17 

U.S.C. 801(b)(1), 804(b)(4). Accordingly, 

the Judges commenced the current 

proceeding in January 2021, by 

publishing notice of the commencement 

and soliciting petitions to participate 

from interested parties. See 86 FR 25 

(Jan. 5, 2021). 

The Judges received petitions to 

participate in the current proceeding 

from Amazon.com Services LLC, Apple 

Inc., Copyright Owners (joint petitioners 

Nashville Songwriters Association 

International (NSAI) and National 

Music Publishers’ Association (NMPA)), 

Google LLC, George Johnson, Joint 

Record Company Participants (filed by 

Recording Industry Association of 

America, Inc. for joint petitioners Sony 

Music Entertainment, UMG Recordings, 

Inc., and Warner Music Group Corp.), 

Pandora Media, LLC, David Powell, 

SoundCloud Operations Inc.,1 Spotify 

USA Inc., and Brian Zisk.2

The Judges gave notice to all 

participants of the three-month 

negotiation period required by 17 U.S.C. 

803(b)(3) and directed that, if the 

participants were unable to negotiate a 

settlement, they should submit Written 

Direct Statements no later than 

September 10, 2021. On May 25, 2021, 

the Judges received a motion stating that 

several participants 3 had reached a 

partial settlement regarding the rates 

and terms for the period commencing in 

January 2023 under Section 115 of the 

Copyright Act, namely, the applicable 

rates for use of musical works in 

physical phonorecords, permanent 

downloads, ringtones, and music 

bundles (Subpart B Configurations) 4


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33094 Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 

detailing royalty rates and terms for licensing 

musical works under the provisions of 17 U.S.C. 

115 (Copyright Act). 

5One participant in the proceeding, George 

Johnson d/b/a GEO Music, objected to the 

settlement. Other parties opposing adoption of the 

settlement as a basis for statutory rates and terms 

included songwriters, publishers, music industry 

attorneys, and trade associations. 

6The composition of the moving parties is the 

same as in the original motion filed in May 2021. 

7The Motion stated that the Moving Parties had 

previously separately entered into a memorandum 

of understanding (MOU) addressing certain 

negotiated licensing processes and late fee waivers 

but that the MOU was ‘‘not consideration’’ for any 

of the terms of the current settlement. See Motion 

at 4 n. 2; 6. (https://app.crb.gov/document/ 

download/26619). The Moving Parties contend that 

predecessor agreements to the MOU, some or all of 

which may be incorporated by reference in the 

current MOU, are publicly available online at 

http://nmpalatefeesettlement.com/. 

8 In general, the Judges do not receive pleadings 

in opposition to a motion that triggers publication 

of notice, such as the Motion at issue here. 

Nonetheless, the Judges received and considered 

GEO’s timely opposition. The Judges will not 

consider that opposition as a formal comment as 

required by publication in the Federal Register. The 

Moving Parties communicated to the Judges that no 

reply is forthcoming. 

and seeking approval of that partial 

settlement. See Motion to Adopt 

Settlement of Statutory Royalty Rates 

and Terms for Subpart B 

Configurations, Docket No. 21–CRB– 

0001–PR (2023–2027) at 1 (May 25, 

2021). The Judges published for 

comment a proposed rule and received 

comments in opposition to the 

settlement from twelve interested 

parties, including joint comments from 

organizations, trade associations, and 

self-assembled groups of parties.5 See 86 

FR 33601 (June 25, 2021), 86 FR 40793 

(Jul. 29, 2021) (reopening comment 

period), 86 FR 58626 (Oct. 22, 2021) 

(reopening comment period a second 

time). 

After considering the comments in 

opposition to the settlement, the Judges 

withdrew the proposed rule that would 

have adopted that settlement as 

statutory royalty rates. See Proposed 

rule; withdrawal; Determination of 

Royalty Rates and Terms for Making and 

Distributing Phonorecords 

(Phonorecords IV), 87 FR 18342 (Mar. 

30, 2022). 

On May 5, 2022, the Judges received 

a Joint Motion to Adopt New Settlement 

of Statutory Royalty Rates and Terms for 

Subpart B Configurations (Motion). The 

moving parties are self-identified 

Copyright Owners and self-identified 

Record Company Participants.6 The full 

text of the Motion is available on eCRB 

(https://app.crb.gov).7

On May 19, 2022, George Johnson d/ 

b/a/ GEO, filed a response in opposition 

to the Motion.8

The settlement proposes that the 

section 115 royalty rate for subpart B 

configurations for the rate period 

commencing January 1, 2023, be set at 

$0.12 per track, with annual inflationbased adjustments for subsequent years 

of the rate period. Motion at 3. The 

Moving Parties proposed editorial and 

substantive changes to applicable 

regulations found in both subparts A 

and B of part 385 to accomplish the rate 

increase. 

The proposed editorial changes apply 

to two definitions in subpart A and 

would clarify the reach and application 

of the terms ‘‘Licensed Activity,’’ and 

‘‘Sound Recording Company.’’ The 

substantive changes occur in secs. 

385.10 and 385.11, which state the 

proposed rate for 2023 and describe the 

proposed annual inflation-based rate 

adjustment for subsequent years. The 

Moving Parties provided a redlined 

version of the regulations and the 

proposed changes thereto, along with 

the stated rationale for each change. 

Motion at 6–7. 

As part of this proposed rule, the 

Judges propose an additional minor 

revision to the definition of ‘‘Eligible 

Digital Download’’ in section 385.2. The 

cross-reference to 17 U.S.C. 115(c)(3)(C) 

and (D) in that definition is shortened 

to 17 U.S.C. 115 because, following 

enactment of the Music Modernization 

Act, the section no longer has a 

subsection (c)(3). See Orrin G. HatchBob Goodlatte Music Modernization 

Act, Public Law 115–264, 132 Stat. 

3678, 3679–3684 (October 11, 2018). 

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

Act authorizes the Judges to adopt rates 

and terms negotiated by ‘‘some or all of 

the participants in a proceeding at any 

time during the proceeding’’ provided 

they are submitted to the Judges for 

approval. This section provides that the 

Judges shall provide notice and an 

opportunity to comment on the 

agreement to (1) those that would be 

bound by the terms, rates, or other 

determination set by the agreement and 

(2) participants in the proceeding that 

would be bound by the terms, rates, or 

other determination set by the 

agreement. See sec. 801(b)(7)(A). The 

Judges may decline to adopt the 

agreement as a basis for statutory terms 

and rates for participants not party to 

the agreement if any participant objects 

and the Judges conclude that the 

agreement does not provide a reasonable 

basis for setting statutory terms or rates. 

Id. 

If the Judges adopt rates and terms 

reached pursuant to a negotiated 

settlement, those rates and terms are 

binding on all copyright owners of 

musical works and those using the 

musical works in the activities 

described in the proposed regulations. 

The Judges solicit comments on 

whether they should adopt the proposed 

regulations as statutory rates and terms 

relating to the making and distribution 

of physical or digital phonorecords of 

nondramatic musical works 

encompassed in subpart B, part 385 of 

the applicable regulations. 

Comments and objections regarding 

the rates and terms and the revisions to 

the regulations proposed by the Moving 

Parties and the Judges must be 

submitted no later than July 1, 2022. 

List of Subjects in 37 CFR Part 385 

Copyright, Phonorecords, Recordings. 

Proposed Regulations 

For the reasons set forth in the 

preamble, the Copyright Royalty Judges 

propose to amend 37 CFR part 385 as 

follows: 

PART 385—RATES AND TERMS FOR 

USE OF NONDRAMATIC MUSICAL 

WORKS IN THE MAKING AND 

DISTRIBUTING OF PHYSICAL AND 

DIGITAL PHONORECORDS 

■ 1. The authority citation for part 385 

continues to read as follows: 

Authority: 17 U.S.C. 115, 801(b)(1), 

804(b)(4). 

■ 2. In § 385.2 revise the introductory 

text of the definition for ‘‘Eligible 

Limited Download’’, the definition for 

‘‘Licensed Activity’’, and the fourth 

sentence in the definition for Sound 

Recording Company to read as follows: 

§ 385.2 Definitions. 

* * * * * 

Eligible Limited Download means a 

transmission of a sound recording 

embodying a musical work to an End 

User of a digital phonorecord under 17 

U.S.C. 115 that results in a Digital 

Phonorecord Delivery of that sound 

recording that is only accessible for 

listening for— 

* * * * * 

Licensed Activity, as the term is used 

in subparts C and D of this part, means 

delivery of musical works, under 

voluntary or statutory license, via 

Digital Phonorecord Deliveries in 

connection with Interactive Eligible 

Streams, Eligible Limited Downloads, 

Limited Offerings, mixed Bundles, and 

Locker Services. 

* * * * * 

Sound Recording Company means a 

person or entity that: 

* * * * * 

(4) Performs the functions of 

marketing and authorizing the 

distribution of a sound recording of a 

musical work under its own label, under 


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Federal Register / Vol. 87, No. 105 / Wednesday, June 1, 2022 / Proposed Rules 33095 

the authority of a person identified in 

paragraphs (1) through (3) of this 

section. 

* * * * * 

■ 3. Revise § 385.10 to read as follows: 

§ 385.10 Scope. 

This subpart establishes rates and 

terms of royalty payments for making 

and distributing physical phonorecords, 

Permanent Downloads, Ringtones, and 

Music Bundles, in accordance with the 

provisions of 17 U.S.C. 115. 

■ 4. Revise § 385.11 paragraph (a) to 

read as follows: 

§ 385.11 Royalty rates. 

(a) Physical phonorecords and 

Permanent Downloads. 

(1) 2023 Rate. For the year 2023, for 

every physical phonorecord and 

Permanent Download the Licensee 

makes and distributes or authorizes to 

be made and distributed, the royalty rate 

payable for each work embodied in the 

phonorecord or Permanent Download 

shall be either 12.0 cents or 2.31 cents 

per minute of playing time or fraction 

thereof, whichever amount is larger. 

(2) Annual rate adjustment. The 

Copyright Royalty Judges shall adjust 

the royalty rates in paragraph (a)(1) of 

this section each year to reflect any 

changes occurring in the cost of living 

as determined by the most recent 

Consumer Price Index for All Urban 

Consumers (U.S. City Average, all items) 

(CPI–U) published by the Secretary of 

Labor before December 1 of the 

preceding year. The calculation of the 

rate for each year shall be cumulative 

based on a calculation of the percentage 

increase in the CPI–U from the CPI–U 

published in November, 2022 (the Base 

Rate) and shall be made according to the 

following formulas: for the per-work 

rate, (1 + (Cy¥Base Rate)/Base Rate) × 

12¢, rounded to the nearest tenth of a 

cent; for the per-minute rate, (1 + 

(Cy¥Base Rate)/Base Rate) × 2.31¢, 

rounded to the nearest hundredth of a 

cent; where Cy is the CPI–U published 

by the Secretary of Labor before 

December 1 of the preceding year. The 

Judges shall publish notice of the 

adjusted fees in the Federal Register at 

least 25 days before January 1. The 

adjusted fees shall be effective on 

January 1. 

* * * * * 

Dated: May 24, 2022. 

Suzanne M. Barnett, 

Chief Copyright Royalty Judge. 

[FR Doc. 2022–11521 Filed 5–31–22; 8:45 am] 

BILLING CODE 1410–72–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2021–0536; FRL–9802–01– 

R5] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Michigan; Federal Implementation Plan 

for the Detroit Sulfur Dioxide 

Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing a Federal 

Implementation Plan (FIP) for attaining 

the 2010 sulfur dioxide (SO2) primary 

national ambient air quality standard 

(NAAQS) for the Detroit SO2

nonattainment area. The FIP includes an 

attainment demonstration and other 

elements required under the Clean Air 

Act (CAA). In addition to an attainment 

demonstration, the FIP addresses the 

requirement for meeting reasonable 

further progress (RFP) toward 

attainment of the NAAQS, reasonably 

available control measures and 

reasonably available control technology 

(RACM/RACT), enforceable emission 

limitations and control measures to 

provide for NAAQS attainment, and 

contingency measures. This action 

supplements a prior action which found 

that Michigan had satisfied emission 

inventory (EI) and nonattainment new 

source review (NSR) requirements for 

this area but had not met requirements 

for the elements addressed in the 

proposed FIP. EPA is proposing to 

determine that the FIP provides for 

attainment of the 2010 primary SO2

NAAQS in the Detroit SO2

nonattainment area and meets the other 

applicable requirements under the CAA. 

DATES: Comments must be received on 

or before July 18, 2022. 

Virtual Public Hearing. In order to 

comply with current Centers for Disease 

Control and Prevention (CDC) 

recommendations, as well as state and 

local orders, for social distancing to 

limit the spread of COVID–19, EPA is 

holding a virtual public hearing to 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning the proposal. 

EPA will hold a virtual public hearing 

to solicit comments on June 16, 2022. 

The hearing will convene at 3:00 p.m. 

Eastern Time (ET) and will conclude at 

9:00 p.m. ET, or 15 minutes after the last 

pre-registered presenter in attendance 

has presented if there are no additional 

presenters. EPA will announce further 

details, including information on how to 

register for the virtual public hearing, on 

the virtual public hearing website at 

https://www.epa.gov/mi/detroit-so2- 

federal-implementation-plan. 

EPA will begin pre-registering 

presenters and attendees for the hearing 

upon publication of this document in 

the Federal Register. To pre-register to 

attend or present at the virtual public 

hearing, please use the online 

registration form available at https://

www.epa.gov/mi/detroit-so2-federalimplementation-plan or contact Abigail 

Teener at 312–353–7314 or by email at 

DetroitFIP@epa.gov. The last day to preregister to present at the hearing will be 

June 13, 2022. On June 13, 2022, EPA 

will post a general agenda for the 

hearing that will list pre-registered 

presenters in approximate order at 

https://www.epa.gov/mi/detroit-so2- 

federal-implementation-plan. 

Additionally, requests to present will be 

taken on the day of the hearing as time 

allows. 

EPA will make every effort to follow 

the schedule as closely as possible on 

the day of the hearing; however, please 

plan for the hearing to run either ahead 

of schedule or behind schedule. Each 

commenter will have 5 minutes to 

provide oral testimony. EPA encourages 

commenters to provide EPA with a copy 

of their oral testimony electronically by 

including it in the registration form or 

emailing it to DetroitFIP@epa.gov. EPA 

may ask clarifying questions during the 

oral presentations but will not respond 

to the presentations at that time. Written 

statements and supporting information 

submitted during the comment period 

will be considered with the same weight 

as oral comments and supporting 

information presented at the virtual 

public hearing. A transcript of the 

virtual public hearing, as well as copies 

of oral presentations submitted to EPA, 

will be included in the docket for this 

action. 

EPA is asking all hearing attendees to 

pre-register, even those who do not 

intend to present. EPA will send 

information on how to join the public 

hearing to pre-registered attendees and 

presenters. 

Please note that any updates made to 

any aspect of the hearing will be posted 

online at https://www.epa.gov/mi/ 

detroit-so2-federal-implementationplan. While EPA expects the hearing to 

go forward as set forth above, please 

monitor our website or contact Abigail 

Teener at 312–353–7314 or DetroitFIP@

epa.gov to determine if there are any 

updates. EPA does not intend to publish 

a document in the Federal Register 

announcing updates. 


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