Determination and Allocation of Initial Administrative Assessment To Fund Mechanical Licensing Collective (Initial AA), 831-834 [2019-28233]
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Federal Register / Vol. 85, No. 5 / Wednesday, January 8, 2020 / Rules and Regulations
violation of a requirement of a
regulation or rule under paragraph (a) of
this section or a compliance order
issued under paragraph (b) of this
section, not to exceed $152,998 for each
violation.
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PART 851—WORKER SAFETY AND
HEALTH PROGRAM
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PART 1013—PROGRAM FRAUD CIVIL
REMEDIES AND PROCEDURES
24. The authority citation for part
1013 continues to reads as follows:
■
Authority: 31 U.S.C. 3801–3812; 28 U.S.C.
2461 note.
21. The authority citation for part 851
continues to read as follows:
■
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Authority: 42 U.S.C. 2201(i)(3), (p); 42
U.S.C. 2282c; 42 U.S.C. 5801 et seq.; 42
U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.;
28 U.S.C. 2461 note.
§ 1013.3 Basis for civil penalties and
assessments.
22. Section 851.5 is amended by
revising the first sentence of paragraph
(a) to read as follows:
■
§ 851.5
Enforcement.
(a) A contractor that is indemnified
under section 170d. of the AEA (or any
subcontractor or supplier thereto) and
that violates (or whose employee
violates) any requirement of this part
shall be subject to a civil penalty of up
to $99,361 for each such violation.
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■ 23. Appendix B to part 851 is
amended by:
■ a. In section VI:
■ i. Adding a period after the phrase
‘‘such place of employment’’ in
paragraph (b)(1); and
■ ii. Revising the last sentences of
paragraphs (b)(1) and (2); and
■ b. Revising paragraph 1.(e)(1) in
section IX.
The revisions read as follows:
25. Section 1013.3 is amended by
revising paragraphs (a)(1)(iv) and
(b)(1)(ii) to read as follows:
(a) * * *
(1) * * *
(iv) Is for payment for the provision
of property or services which the person
has not provided as claimed, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than $11,665 for
each such claim.
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(b) * * *
(1) * * *
(ii) Contains or is accompanied by an
express certification or affirmation of
the truthfulness and accuracy of the
contents of the statement, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than $11,665 for
each such statement.
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PART 1017—IDENTIFICATION AND
PROTECTION OF UNCLASSIFIED
CONTROLLED NUCLEAR
INFORMATION
26. The authority citation for part
1017 continues to read as follows:
Appendix B to Part 851—General
Statement of Enforcement Policy
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Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C.
2401 et seq.; 42 U.S.C. 2168; 28 U.S.C. 2461
note.
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VI. Severity of Violations
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(b) * * *
(1) * * * A Severity Level I violation
would be subject to a base civil penalty of up
to 100% of the maximum base civil penalty
of $99,361.
(2) * * * A Severity Level II violation
would be subject to a base civil penalty up
to 50% of the maximum base civil penalty
($49,680).
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IX. Enforcement Actions
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are indemnified by the Price-Anderson Act,
42 U.S.C. 2210(d). See 10 CFR 851.5(a).
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1. Notice of Violation
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(e) * * *
(1) DOE may assess civil penalties of up to
$99,361 per violation per day on contractors
(and their subcontractors and suppliers) that
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27. Section 1017.29 is amended by
revising paragraph (c) to read as follows:
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§ 1017.29
Civil penalty.
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(c) Amount of penalty. The Director
may propose imposition of a civil
penalty for violation of a requirement of
a regulation under paragraph (a) of this
section or a compliance order issued
under paragraph (b) of this section, not
to exceed $275,529 for each violation.
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PART 1050—FOREIGN GIFTS AND
DECORATIONS
28. The authority citation for part
1050 continues to read as follows:
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Authority: The Constitution of the United
States, Article I, Section 9; 5 U.S.C. 7342; 22
U.S.C. 2694; 42 U.S.C. 7254 and 7262; 28
U.S.C. 2461 note.
29. Section 1050.303 is amended by
revising the last sentence in paragraph
(d) to read as follows:
■
§ 1050.303
Enforcement.
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(d) * * * The court in which such
action is brought may assess a civil
penalty against such employee in any
amount not to exceed the retail value of
the gift improperly solicited or received
plus $20,888.
[FR Doc. 2019–27802 Filed 1–7–20; 8:45 am]
BILLING CODE 6450–01–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 390
[Docket No. 19–CRB–0009 AA]
Determination and Allocation of Initial
Administrative Assessment To Fund
Mechanical Licensing Collective (Initial
AA)
Copyright Royalty Board,
Library of Congress.
ACTION: Final rule.
AGENCY:
The Copyright Royalty Judges
publish final regulations that set the
amount and allocation of the Initial
Administrative Assessment to fund the
Mechanical Licensing Collective.
DATES: Effective Date: January 8, 2020.
ADDRESSES: Docket: For access to the
docket to read background 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 19–CRB–0009 AA.
FOR FURTHER INFORMATION CONTACT:
Anita Blaine, Program Specialist, by
telephone at (202) 707–7658 or by email
at crb@loc.gov.
SUPPLEMENTARY INFORMATION: On July 8,
2019, the Copyright Royalty Board
initiated the proceeding titled
Determination and Allocation of Initial
Administrative Assessment to Fund
Mechanical Licensing Collective, by
causing to be published a notice in the
Federal Register at 84 FR 32475,
pursuant to the Orrin G. Hatch-Bob
Goodlatte Music Modernization Act
(MMA), Public Law 115–264, 132 Stat.
3676 (Oct. 11, 2018), 17 U.S.C.
115(d)(7)(D)(vii) and 801(b)(8) (2018).
The purpose of this proceeding was to
determine the initial administrative
SUMMARY:
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assessment that digital music providers
and any significant nonblanket licensees
must pay to fund the collective total
costs of the Mechanical Licensing
Collective.
On November 14, 2019, the
Mechanical Licensing Collective and the
Digital Licensee Coordinator filed with
the Copyright Royalty Judges (‘‘Judges’’)
a Joint Notice of Settlement and Motion
to Suspend Case Schedule informing the
Judges that they had reached a full
settlement of all terms in the proceeding
and describing in detail those terms.
The Judges granted that motion and
directed the participants to file
proposed regulations.
Section 115(d)(7)(D)(v) of the
Copyright Act authorizes the Judges to
approve and adopt a negotiated
agreement that has been agreed to by the
Mechanical Licensing Collective and the
Digital Licensee Coordinator in lieu of a
determination of the administrative
assessment. An administrative
assessment adopted under sec.
115(d)(7)(D)(v) ‘‘shall apply to all digital
music providers and significant
nonblanket licensees engaged in
covered activities during the period the
administrative assessment is in effect.’’
Id.
However, the Judges, in their
discretion, may reject a proposed
settlement for good cause shown.
Section 355.4(c)(4) of 37 CFR establishes
a process for non-settling participants to
comment on a proposed settlement and
for the settling participants to respond.
Because there were no non-settling
participants in the instant proceeding,
the proposed settlement was
unopposed.1 Moreover, the participants,
at the Judges’ direction, explained to the
Judges’ satisfaction how the Proposed
Regulations comply with the provisions
of the Copyright Act. See generally
Motion. The Judges, finding no good
cause to reject the proposed settlement
agreement, hereby adopt it and publish
1 The Judges have been advised by their staff that
some members of the public sent emails to the
Copyright Royalty Board seeking to comment on the
proposed settlement agreement. Neither the
Copyright Act, nor the regulations adopted
thereunder, provide for submission or consideration
of comments on a proposed settlement by nonparticipants in an administrative assessment
proceeding. Consequently, as a matter of law, the
Judges could not, and did not, consider these ex
parte communications in deciding whether to
approve the proposed settlement. Additionally, the
Judges’ non-consideration of these ex parte
communications does not: (i) Imply any opinion by
the Judges as to the substantive merits of any
statements contained in such communications; or
(ii) reflect any inability of the Judges to question,
sua sponte, whether good cause exists to adopt a
settlement and to then utilize all express or
reasonably implied statutory authority granted to
them to make a determination as to the existence,
vel non, of good cause.
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these final regulations implementing the
settlement.
List of Subjects in 37 CFR Part 390
Copyright, Licensing and registration,
Music, Phonorecords, Recordings,
Royalties.
For the reasons set forth in the
preamble, the Copyright Royalty Judges
add part 390 to chapter III of title 37 of
the Code of Federal Regulations as
follows:
PART 390—AMOUNTS AND TERMS
FOR ADMINISTRATIVE
ASSESSMENTS TO FUND
MECHANICAL LICENSING
COLLECTIVE
Sec.
390.1 Definitions.
390.2 Amount of assessments.
390.3 Annual minimum fees.
390.4 Annual Assessment allocation and
payment.
Authority: 17 U.S.C. 115, 801(b).
PART 390—AMOUNTS OF AND TERMS
FOR ADMINISTRATIVE
ASSESSMENTS TO FUND
MECHANICAL LICENSING
COLLECTIVE
§ 390.1
Definitions.
Administrative assessment has the
meaning set forth in 17 U.S.C. 115(e)(3).
Aggregate Sound Recordings Count
means the sum of the Unique Sound
Recordings Counts of each and every
Licensee, calculated over the respective
Quarterly Allocation calculation period.
All Licensee Assessment Pool means
an amount equaling 50% of each
Annual Assessment and Quarterly
Allocation.
Annual Assessment means the
administrative assessment for each
calendar year beginning with the
calendar year 2021.
Annual Calculation Period means the
calculation period for annual minimum
fees, as set forth in § 390.3(b).
Annual minimum fee means the
minimum amount each Licensee shall
pay for each Annual Assessment period,
as set forth in § 390.3.
Certified Minimum Fee Disclosure
means a Licensee’s certified statement
setting forth its Unique Sound
Recordings Count for the respective
calculation period.
Digital licensee coordinator or DLC
has the meaning set forth in 17 U.S.C.
115(e)(9).
ECI means the Employment Cost
Index for Total Compensation (not
seasonally adjusted), all civilian
workers, as published on the website of
the United States Department of Labor,
Bureau of Labor Statistics, for the most
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recent 12-month period for which data
are available on the date that is 60 days
prior to the start of the calendar year.
License availability date has the
meaning set forth in 17 U.S.C.
115(e)(15).
Licensee means either:
(1) A digital music provider that is
engaged, in all or in part, in covered
activities pursuant to a blanket license;
or
(2) A significant nonblanket licensee,
as those terms are defined under 17
U.S.C. 115(e).
Mechanical licensing collective or
MLC has the meaning set forth in 17
U.S.C. 115(e)(18).
Notice of license has the meaning set
forth in 17 U.S.C. 115(e)(22).
Notice of nonblanket activity has the
meaning set forth in 17 U.S.C.
115(e)(23).
Quarterly Allocation means each of
four equal parts of each Annual
Assessment, to be paid on a calendar
quarterly basis.
Startup Assessment means the onetime administrative assessment for the
startup phase of the Mechanical
licensing collective.
Threshold Licensee means a Licensee
that reports at least 7.5% of the
Aggregate Sound Recordings Count of
all Licensees.
Threshold Licensee Assessment Pool
means an amount equaling 50% of each
Annual Assessment and Quarterly
Allocation.
Unique Sound Recordings Count
means, for each Licensee, the number of
unique and royalty-bearing sound
recordings used per month by such
Licensee in Section 115 covered
activities, such as would be reflected in
the information required to be reported
under Section 115(d), calculated as a
monthly average over the respective
calculation period. For example, a
Licensee’s Unique Sound Recordings
Count for a Quarterly Allocation
calculation period will be calculated by
adding together the counts of unique
and royalty-bearing sound recordings
reported by such Licensee to the MLC
during each month of that quarter, and
dividing that sum by three. A Licensee’s
Unique Sound Recordings Count for an
Annual Calculation Period will be
calculated by adding together the counts
of unique and royalty-bearing sound
recordings reported by such Licensee to
the MLC during each month of that
twelve-month period, and dividing that
sum by twelve. Within each month’s
usage reports from a particular Licensee,
a sound recording reported multiple
times with the same metadata would be
counted as a single sound recording,
and a sound recording reported multiple
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times each with different metadata
would be counted multiple times, once
for each reporting with new or different
metadata.
§ 390.2
Amount of assessments.
(a) Startup Assessment. The Startup
Assessment shall be in the amount of
$33,500,000.
(b) 2021 Annual Assessment. The
Annual Assessment for the calendar
year 2021 shall be in the amount of
$28,500,000.
(c) Other Annual Assessments. (1) For
the calendar year 2022 and all
subsequent years, the amount of the
Annual Assessment will be
automatically adjusted by increasing the
amount of the Annual Assessment of the
preceding calendar year by the lesser of:
(i) 3 percent; and
(ii) The percentage change in the ECI.
(2) The MLC shall publish notice on
its website of each year’s automatic
adjustment to the Annual Assessment.
The Annual Assessment shall continue
from year to year unless and until the
Copyright Royalty Judges cause to be
published an adjusted administrative
assessment pursuant to 17 U.S.C.
115(d)(7)(D)(iv) or (v).
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§ 390.3
Annual minimum fees.
(a) Amount. All Licensees shall pay
the following annual minimum fee for
each Annual Assessment period:
(1) For Licensees that have a Unique
Sound Recordings Count of less than
5,000 during the relevant Annual
Calculation Period, the annual
minimum fee shall be $5,000.
(2) For Licensees that have a Unique
Sound Recordings Count of 5,000 or
more during the relevant Annual
Calculation Period, the annual
minimum fee shall be $60,000.
(b) Annual Calculation Period. The
calculation period for annual minimum
fees shall be the 12-month period that
ends on the September 30th
immediately preceding the start of the
assessment period (e.g., the annual
minimum fee calculation period for the
2021 Annual Assessment shall be
October 1, 2019 to September 30, 2020).
(c) Calculation by Licensee
certification (2021 and 2022)—(1) 2021.
Each Licensee in operation on or before
the license availability date shall submit
to the MLC, accompanying its notice of
license under Section 115(d)(2)(A) or its
notice of nonblanket activity under
Section 115(d)(6)(A) and no later than
February 15, 2021, its Certified
Minimum Fee Disclosure for the 2021
annual minimum fee (i.e., for the period
from October 1, 2019 to September 30,
2020). Each Licensee shall submit the
appropriate minimum fee (i.e., $5,000 or
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$60,000) for the 2021 Assessment
simultaneously with its Certified
Minimum Fee Disclosure.
(2) 2022. Each Licensee shall submit
to the MLC by November 1, 2021, a
Certified Minimum Fee Disclosure for
the 2022 Assessment, and shall pay the
appropriate annual minimum fee by
January 15, 2022.
(d) Calculation by the MLC (2023 and
subsequent years). (1) Beginning with
the 2023 Assessment and continuing in
subsequent years, the MLC will
calculate each Licensee’s annual
minimum fee based on usage reporting
received from Licensees pursuant to
Section 115(d)(4). The MLC shall send
invoices for the appropriate annual
minimum fee to each Licensee.
Licensees shall pay the annual
minimum fee invoices from the MLC by
the later of:
(i) 30 days from receipt of the invoice
from the MLC; or
(ii) January 15th of the respective
Annual Assessment year.
(2) Each Licensee in operation during
any portion of an annual minimum fee
calculation period shall pay the full
amount of the respective annual
minimum fee.
§ 390.4 Annual Assessment allocation and
payment.
(a) Allocation formula. Each Annual
Assessment shall be divided into four
equal Quarterly Allocations, each of
which shall be allocated and paid on a
calendar quarterly basis. Each Quarterly
Allocation shall be divided into two
equal parts, allocated among Licensees
according to the following formula:
(1) All Licensee Assessment Pool. The
All Licensee Assessment Pool shall be
allocated on a pro rata basis across all
Licensees based on each Licensee’s
share of the Aggregate Sound
Recordings Count.
(2) Threshold Licensee Assessment
Pool. The Threshold Licensee
Assessment Pool shall be allocated on a
pro rata basis across Threshold
Licensees based on each Threshold
Licensee’s share of the aggregate Unique
Sound Recordings Counts of all
Threshold Licensees.
(b) Calculation periods and timing.
The calculation period for each
Quarterly Allocation shall be the threemonth period that ends three months
prior to the start of the respective
quarter, except that the calculation
period for the Quarterly Allocation for
the first and second quarters of 2021
shall be the same as for the annual
minimum fee for the 2021 Annual
Assessment, and shall be calculated
based upon the information provided in
the Certified Minimum Fee Disclosures,
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833
as required by this part. The MLC shall
make all calculations for each respective
period based upon the reporting for
such period received from Licensees as
of the time of calculation by the MLC,
which calculation time shall not be
earlier than the legal deadline for
submission of reporting by Licensees for
the respective period. In the event that
a Licensee has not provided timely
reporting for the respective calculation
period at the time the MLC calculates a
Quarterly Allocation, the MLC may
instead, in its discretion, use the most
recent reporting from that Licensee to
determine that Licensee’s Unique Sound
Recordings Count, for the purposes of
calculating the Quarterly Allocation.
(c) Invoicing and payment of
allocation—(1) Deadline for payment. (i)
Invoices from the MLC for Quarterly
Allocation shares shall be payable
pursuant to the MLC invoice, but no
earlier than the later of:
(A) 30 days from receipt of the invoice
from the MLC; or
(B) The first day of the next calendar
quarter.
(ii) Invoices from the MLC to
Licensees shall be deemed received on
the business day after electronic
transmission.
(2) Format of invoices. (i) The
quarterly invoices issued by the MLC
shall include at least the following
information, where applicable:
(A) Invoice issuance date;
(B) Invoice payment due date;
(C) Amount owed, by share of All
Licensee Assessment Pool and
Threshold Licensee Assessment Pool;
(D) Allocation of Startup Assessment;
(E) Offset of minimum fee payment
against quarterly assessment; and
(F) Amount of credit for un-recouped
minimum fee.
(ii) Invoices issued as a result of an
allocation adjustment shall include all
of the information set forth in
paragraphs (c)(2)(i)(A) through (F) of
this section that may be relevant, as well
as an explanation of the change from the
prior invoices that are affected, and the
reason(s) for the adjustment.
(d) Late reporting. The MLC shall
promptly notify the DLC of any known
Licensees who have not timely
submitted reports of usage as required
each month pursuant to Section 115(d)
and 37 CFR part 210.
(e) Recalculation of Allocated
Assessment invoices. The MLC may, in
its discretion, recalculate allocations
and adjust prior invoices, with the
written consent of the DLC, within
twelve months after the initial issuance
of such invoices, in circumstances
including, but not limited to, where new
usage reporting is received or where a
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correction would alter one or more of
any Licensee’s Quarterly Allocation
shares by at least 10%.
(f) Recoupment of minimum fee. Each
Licensee’s annual minimum fee will be
offset against its Quarterly Allocation
shares, and additional payment will not
be due from a Licensee unless and until
its total Quarterly Allocation shares
exceed its annual minimum fee
payment. To the extent that a Licensee’s
annual minimum fee exceeds that
Licensee’s Quarterly Allocation shares
for a given Assessment period, the
excess amounts will be pooled and
credited pro rata to all Licensees based
on the Quarterly Allocation shares for
the first quarter of the following year.
(g) Reports to DLC. The MLC shall
report to the DLC no later than 75 days
after the end of every quarter the
Aggregate Sound Recordings Count for
that quarter.
(h) Startup Assessment allocation and
payment. The Startup Assessment shall
be allocated and paid in the same
manner and on the same dates as the
2021 Annual Assessment, including as
to each of the applicable provisions
above, and shall be separately itemized
in invoices from the MLC to Licensees.
Dated: December 18, 2019.
Jesse M. Feder,
Chief Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019–28233 Filed 1–7–20; 8:45 am]
BILLING CODE 1410–72–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 58
[EPA–HQ–OAR–2019–0137; FRL–10003–87–
OAR]
RIN 2060–AU38
Extension of Start Date for Revised
Photochemical Assessment
Monitoring Stations
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The EPA is delaying the start
date for the revised Photochemical
Assessment Monitoring Stations
(PAMS) monitoring site network
established in EPA regulations. This
final action extends the start date from
June 1, 2019, to June 1, 2021. The
revision gives states two additional
years to acquire the necessary
equipment and expertise needed to
successfully make the required PAMS
measurements by the start of the 2021
PAMS season.
DATES: This final rule is effective on
February 7, 2020.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OAR–2019–0137. All
documents in the docket are listed on
the https://www.regulations.gov website.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
(CBI) or other information whose
disclosure is restricted by statue. Certain
other material, such as copyrighted
material, is not placed on the internet
and will be publicly available only in
hard copy form. Publicly available
docket materials are available either
electronically through https://
www.regulations.gov, or in hard copy at
the EPA Docket Center, EPA WJC West
Building, Room Number 3334, 1301
Constitution Ave. NW, Washington, DC.
The Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m.
Eastern Standard Time (EST), Monday
through Friday. The telephone number
for the Public Reading Room is (202)
566–1744, and the telephone number for
the Docket Center is (202) 566–1742.
FOR FURTHER INFORMATION CONTACT: For
questions about this final action, contact
Kevin Cavender, Air Quality Analysis
Division (C304–06), Office of Air
Quality Planning and Standards, U.S.
Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2364; fax number: (919) 541–1903; and
email address: cavender.kevin@epa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Table of Contents
I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document
and other related information?
C. Judicial Review
II. Background
III. What actions did we propose?
IV. What comments did we receive?
V. What actions are we taking in this final
rule?
VI. What are the impacts of the actions taken
in this final rule?
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulation and Controlling Regulatory
Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
I. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Technology Transfer and
Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
Table 1 of this preamble identifies the
entities potentially affected by this
action. This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. If you have questions
regarding the applicability of this action
to a particular entity, consult the person
listed in the FOR FURTHER INFORMATION
CONTACT section.
TABLE 1—SOURCE CATEGORIES AFFECTED BY THIS ACTION
NAICS 1 code
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Source category
State, local, and tribal government agencies .............................
1 North
924119
Examples of affected sources
Administration of air and water resource and solid waste management programs.
American Industry Classification System.
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]]>Agencies
[Federal Register Volume 85, Number 5 (Wednesday, January 8, 2020)]
[Rules and Regulations]
[Pages 831-834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28233]
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LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 390
[Docket No. 19-CRB-0009 AA]
Determination and Allocation of Initial Administrative Assessment
To Fund Mechanical Licensing Collective (Initial AA)
AGENCY: Copyright Royalty Board, Library of Congress.
ACTION: Final rule.
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SUMMARY: The Copyright Royalty Judges publish final regulations that
set the amount and allocation of the Initial Administrative Assessment
to fund the Mechanical Licensing Collective.
DATES: Effective Date: January 8, 2020.
ADDRESSES: Docket: For access to the docket to read background
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 19-CRB-0009 AA.
FOR FURTHER INFORMATION CONTACT: Anita Blaine, Program Specialist, by
telephone at (202) 707-7658 or by email at [email protected].
SUPPLEMENTARY INFORMATION: On July 8, 2019, the Copyright Royalty Board
initiated the proceeding titled Determination and Allocation of Initial
Administrative Assessment to Fund Mechanical Licensing Collective, by
causing to be published a notice in the Federal Register at 84 FR
32475, pursuant to the Orrin G. Hatch-Bob Goodlatte Music Modernization
Act (MMA), Public Law 115-264, 132 Stat. 3676 (Oct. 11, 2018), 17
U.S.C. 115(d)(7)(D)(vii) and 801(b)(8) (2018). The purpose of this
proceeding was to determine the initial administrative
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assessment that digital music providers and any significant nonblanket
licensees must pay to fund the collective total costs of the Mechanical
Licensing Collective.
On November 14, 2019, the Mechanical Licensing Collective and the
Digital Licensee Coordinator filed with the Copyright Royalty Judges
(``Judges'') a Joint Notice of Settlement and Motion to Suspend Case
Schedule informing the Judges that they had reached a full settlement
of all terms in the proceeding and describing in detail those terms.
The Judges granted that motion and directed the participants to file
proposed regulations.
Section 115(d)(7)(D)(v) of the Copyright Act authorizes the Judges
to approve and adopt a negotiated agreement that has been agreed to by
the Mechanical Licensing Collective and the Digital Licensee
Coordinator in lieu of a determination of the administrative
assessment. An administrative assessment adopted under sec.
115(d)(7)(D)(v) ``shall apply to all digital music providers and
significant nonblanket licensees engaged in covered activities during
the period the administrative assessment is in effect.'' Id.
However, the Judges, in their discretion, may reject a proposed
settlement for good cause shown. Section 355.4(c)(4) of 37 CFR
establishes a process for non-settling participants to comment on a
proposed settlement and for the settling participants to respond.
Because there were no non-settling participants in the instant
proceeding, the proposed settlement was unopposed.\1\ Moreover, the
participants, at the Judges' direction, explained to the Judges'
satisfaction how the Proposed Regulations comply with the provisions of
the Copyright Act. See generally Motion. The Judges, finding no good
cause to reject the proposed settlement agreement, hereby adopt it and
publish these final regulations implementing the settlement.
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\1\ The Judges have been advised by their staff that some
members of the public sent emails to the Copyright Royalty Board
seeking to comment on the proposed settlement agreement. Neither the
Copyright Act, nor the regulations adopted thereunder, provide for
submission or consideration of comments on a proposed settlement by
non-participants in an administrative assessment proceeding.
Consequently, as a matter of law, the Judges could not, and did not,
consider these ex parte communications in deciding whether to
approve the proposed settlement. Additionally, the Judges' non-
consideration of these ex parte communications does not: (i) Imply
any opinion by the Judges as to the substantive merits of any
statements contained in such communications; or (ii) reflect any
inability of the Judges to question, sua sponte, whether good cause
exists to adopt a settlement and to then utilize all express or
reasonably implied statutory authority granted to them to make a
determination as to the existence, vel non, of good cause.
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List of Subjects in 37 CFR Part 390
Copyright, Licensing and registration, Music, Phonorecords,
Recordings, Royalties.
For the reasons set forth in the preamble, the Copyright Royalty
Judges add part 390 to chapter III of title 37 of the Code of Federal
Regulations as follows:
PART 390--AMOUNTS AND TERMS FOR ADMINISTRATIVE ASSESSMENTS TO FUND
MECHANICAL LICENSING COLLECTIVE
Sec.
390.1 Definitions.
390.2 Amount of assessments.
390.3 Annual minimum fees.
390.4 Annual Assessment allocation and payment.
Authority: 17 U.S.C. 115, 801(b).
PART 390--AMOUNTS OF AND TERMS FOR ADMINISTRATIVE ASSESSMENTS TO
FUND MECHANICAL LICENSING COLLECTIVE
Sec. 390.1 Definitions.
Administrative assessment has the meaning set forth in 17 U.S.C.
115(e)(3).
Aggregate Sound Recordings Count means the sum of the Unique Sound
Recordings Counts of each and every Licensee, calculated over the
respective Quarterly Allocation calculation period.
All Licensee Assessment Pool means an amount equaling 50% of each
Annual Assessment and Quarterly Allocation.
Annual Assessment means the administrative assessment for each
calendar year beginning with the calendar year 2021.
Annual Calculation Period means the calculation period for annual
minimum fees, as set forth in Sec. 390.3(b).
Annual minimum fee means the minimum amount each Licensee shall pay
for each Annual Assessment period, as set forth in Sec. 390.3.
Certified Minimum Fee Disclosure means a Licensee's certified
statement setting forth its Unique Sound Recordings Count for the
respective calculation period.
Digital licensee coordinator or DLC has the meaning set forth in 17
U.S.C. 115(e)(9).
ECI means the Employment Cost Index for Total Compensation (not
seasonally adjusted), all civilian workers, as published on the website
of the United States Department of Labor, Bureau of Labor Statistics,
for the most recent 12-month period for which data are available on the
date that is 60 days prior to the start of the calendar year.
License availability date has the meaning set forth in 17 U.S.C.
115(e)(15).
Licensee means either:
(1) A digital music provider that is engaged, in all or in part, in
covered activities pursuant to a blanket license; or
(2) A significant nonblanket licensee, as those terms are defined
under 17 U.S.C. 115(e).
Mechanical licensing collective or MLC has the meaning set forth in
17 U.S.C. 115(e)(18).
Notice of license has the meaning set forth in 17 U.S.C.
115(e)(22).
Notice of nonblanket activity has the meaning set forth in 17
U.S.C. 115(e)(23).
Quarterly Allocation means each of four equal parts of each Annual
Assessment, to be paid on a calendar quarterly basis.
Startup Assessment means the one-time administrative assessment for
the startup phase of the Mechanical licensing collective.
Threshold Licensee means a Licensee that reports at least 7.5% of
the Aggregate Sound Recordings Count of all Licensees.
Threshold Licensee Assessment Pool means an amount equaling 50% of
each Annual Assessment and Quarterly Allocation.
Unique Sound Recordings Count means, for each Licensee, the number
of unique and royalty-bearing sound recordings used per month by such
Licensee in Section 115 covered activities, such as would be reflected
in the information required to be reported under Section 115(d),
calculated as a monthly average over the respective calculation period.
For example, a Licensee's Unique Sound Recordings Count for a Quarterly
Allocation calculation period will be calculated by adding together the
counts of unique and royalty-bearing sound recordings reported by such
Licensee to the MLC during each month of that quarter, and dividing
that sum by three. A Licensee's Unique Sound Recordings Count for an
Annual Calculation Period will be calculated by adding together the
counts of unique and royalty-bearing sound recordings reported by such
Licensee to the MLC during each month of that twelve-month period, and
dividing that sum by twelve. Within each month's usage reports from a
particular Licensee, a sound recording reported multiple times with the
same metadata would be counted as a single sound recording, and a sound
recording reported multiple
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times each with different metadata would be counted multiple times,
once for each reporting with new or different metadata.
Sec. 390.2 Amount of assessments.
(a) Startup Assessment. The Startup Assessment shall be in the
amount of $33,500,000.
(b) 2021 Annual Assessment. The Annual Assessment for the calendar
year 2021 shall be in the amount of $28,500,000.
(c) Other Annual Assessments. (1) For the calendar year 2022 and
all subsequent years, the amount of the Annual Assessment will be
automatically adjusted by increasing the amount of the Annual
Assessment of the preceding calendar year by the lesser of:
(i) 3 percent; and
(ii) The percentage change in the ECI.
(2) The MLC shall publish notice on its website of each year's
automatic adjustment to the Annual Assessment. The Annual Assessment
shall continue from year to year unless and until the Copyright Royalty
Judges cause to be published an adjusted administrative assessment
pursuant to 17 U.S.C. 115(d)(7)(D)(iv) or (v).
Sec. 390.3 Annual minimum fees.
(a) Amount. All Licensees shall pay the following annual minimum
fee for each Annual Assessment period:
(1) For Licensees that have a Unique Sound Recordings Count of less
than 5,000 during the relevant Annual Calculation Period, the annual
minimum fee shall be $5,000.
(2) For Licensees that have a Unique Sound Recordings Count of
5,000 or more during the relevant Annual Calculation Period, the annual
minimum fee shall be $60,000.
(b) Annual Calculation Period. The calculation period for annual
minimum fees shall be the 12-month period that ends on the September
30th immediately preceding the start of the assessment period (e.g.,
the annual minimum fee calculation period for the 2021 Annual
Assessment shall be October 1, 2019 to September 30, 2020).
(c) Calculation by Licensee certification (2021 and 2022)--(1)
2021. Each Licensee in operation on or before the license availability
date shall submit to the MLC, accompanying its notice of license under
Section 115(d)(2)(A) or its notice of nonblanket activity under Section
115(d)(6)(A) and no later than February 15, 2021, its Certified Minimum
Fee Disclosure for the 2021 annual minimum fee (i.e., for the period
from October 1, 2019 to September 30, 2020). Each Licensee shall submit
the appropriate minimum fee (i.e., $5,000 or $60,000) for the 2021
Assessment simultaneously with its Certified Minimum Fee Disclosure.
(2) 2022. Each Licensee shall submit to the MLC by November 1,
2021, a Certified Minimum Fee Disclosure for the 2022 Assessment, and
shall pay the appropriate annual minimum fee by January 15, 2022.
(d) Calculation by the MLC (2023 and subsequent years). (1)
Beginning with the 2023 Assessment and continuing in subsequent years,
the MLC will calculate each Licensee's annual minimum fee based on
usage reporting received from Licensees pursuant to Section 115(d)(4).
The MLC shall send invoices for the appropriate annual minimum fee to
each Licensee. Licensees shall pay the annual minimum fee invoices from
the MLC by the later of:
(i) 30 days from receipt of the invoice from the MLC; or
(ii) January 15th of the respective Annual Assessment year.
(2) Each Licensee in operation during any portion of an annual
minimum fee calculation period shall pay the full amount of the
respective annual minimum fee.
Sec. 390.4 Annual Assessment allocation and payment.
(a) Allocation formula. Each Annual Assessment shall be divided
into four equal Quarterly Allocations, each of which shall be allocated
and paid on a calendar quarterly basis. Each Quarterly Allocation shall
be divided into two equal parts, allocated among Licensees according to
the following formula:
(1) All Licensee Assessment Pool. The All Licensee Assessment Pool
shall be allocated on a pro rata basis across all Licensees based on
each Licensee's share of the Aggregate Sound Recordings Count.
(2) Threshold Licensee Assessment Pool. The Threshold Licensee
Assessment Pool shall be allocated on a pro rata basis across Threshold
Licensees based on each Threshold Licensee's share of the aggregate
Unique Sound Recordings Counts of all Threshold Licensees.
(b) Calculation periods and timing. The calculation period for each
Quarterly Allocation shall be the three-month period that ends three
months prior to the start of the respective quarter, except that the
calculation period for the Quarterly Allocation for the first and
second quarters of 2021 shall be the same as for the annual minimum fee
for the 2021 Annual Assessment, and shall be calculated based upon the
information provided in the Certified Minimum Fee Disclosures, as
required by this part. The MLC shall make all calculations for each
respective period based upon the reporting for such period received
from Licensees as of the time of calculation by the MLC, which
calculation time shall not be earlier than the legal deadline for
submission of reporting by Licensees for the respective period. In the
event that a Licensee has not provided timely reporting for the
respective calculation period at the time the MLC calculates a
Quarterly Allocation, the MLC may instead, in its discretion, use the
most recent reporting from that Licensee to determine that Licensee's
Unique Sound Recordings Count, for the purposes of calculating the
Quarterly Allocation.
(c) Invoicing and payment of allocation--(1) Deadline for payment.
(i) Invoices from the MLC for Quarterly Allocation shares shall be
payable pursuant to the MLC invoice, but no earlier than the later of:
(A) 30 days from receipt of the invoice from the MLC; or
(B) The first day of the next calendar quarter.
(ii) Invoices from the MLC to Licensees shall be deemed received on
the business day after electronic transmission.
(2) Format of invoices. (i) The quarterly invoices issued by the
MLC shall include at least the following information, where applicable:
(A) Invoice issuance date;
(B) Invoice payment due date;
(C) Amount owed, by share of All Licensee Assessment Pool and
Threshold Licensee Assessment Pool;
(D) Allocation of Startup Assessment;
(E) Offset of minimum fee payment against quarterly assessment; and
(F) Amount of credit for un-recouped minimum fee.
(ii) Invoices issued as a result of an allocation adjustment shall
include all of the information set forth in paragraphs (c)(2)(i)(A)
through (F) of this section that may be relevant, as well as an
explanation of the change from the prior invoices that are affected,
and the reason(s) for the adjustment.
(d) Late reporting. The MLC shall promptly notify the DLC of any
known Licensees who have not timely submitted reports of usage as
required each month pursuant to Section 115(d) and 37 CFR part 210.
(e) Recalculation of Allocated Assessment invoices. The MLC may, in
its discretion, recalculate allocations and adjust prior invoices, with
the written consent of the DLC, within twelve months after the initial
issuance of such invoices, in circumstances including, but not limited
to, where new usage reporting is received or where a
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correction would alter one or more of any Licensee's Quarterly
Allocation shares by at least 10%.
(f) Recoupment of minimum fee. Each Licensee's annual minimum fee
will be offset against its Quarterly Allocation shares, and additional
payment will not be due from a Licensee unless and until its total
Quarterly Allocation shares exceed its annual minimum fee payment. To
the extent that a Licensee's annual minimum fee exceeds that Licensee's
Quarterly Allocation shares for a given Assessment period, the excess
amounts will be pooled and credited pro rata to all Licensees based on
the Quarterly Allocation shares for the first quarter of the following
year.
(g) Reports to DLC. The MLC shall report to the DLC no later than
75 days after the end of every quarter the Aggregate Sound Recordings
Count for that quarter.
(h) Startup Assessment allocation and payment. The Startup
Assessment shall be allocated and paid in the same manner and on the
same dates as the 2021 Annual Assessment, including as to each of the
applicable provisions above, and shall be separately itemized in
invoices from the MLC to Licensees.
Dated: December 18, 2019.
Jesse M. Feder,
Chief Copyright Royalty Judge.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019-28233 Filed 1-7-20; 8:45 am]
BILLING CODE 1410-72-P
