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77170 Federal Register / Vol. 67, No. 242 / Tuesday, December 17, 2002 / Rules and Regulations

columns was delayed during 2002 whileOSHA considered comment on issuesrelated to these requirements. This rulemerely continues the status quo during2003; it does not require any change inrecordkeeping procedures.

If this rule cannot be made effectiveuntil thirty days from publication,employers will be required to comply

with the new MSD and hearing losscolumn requirements for a brief timeduring 2003, only to revert back to theexisting requirements. This wouldimpose burdensome requirements onemployers to quickly train theiremployees and modify theirrecordkeeping software in time toaccommodate the new requirements on January 1. These extraordinary effortswould be wasted since the columnswould be in effect for only a short time,and would produce no worthwhile data.Moreover, there would be a substantialdegree of confusion about compliance

responsibilities since the currentrecordkeeping forms do not contain thecolumns or the MSD definition, andOSHA could not produce and distributenew forms in time. For these reasons,OSHA believes that this final rule musttake effect on January 1, 2003.

Paperwork Reduction Act

The final rule wil l continue OSHA’scurrent policies regarding the recordingof hearing loss and musculoskeletaltissue disorders during 2003 and willnot impose any new paperworkrequirements during that year. Theaddition of a new hearing loss column

in 2004 will result in minor paperworkburdens associated with the addition of a new column, involving training of recordkeeping staff, obtaining newforms, and conversion of nonmandatory computer programs. Theforms will be made available free of charge in 2003, before they are requiredfor use in 2004. These burdens arealready taken into account in thepaperwork estimates for this rule.

Regulatory Flexibility Certification

Pursuant to the Regulatory FlexibilityAct (5 U.S.C. 601), the Assistant

Secretary certifies that the final rule willnot have a significant economic impacton a substantial number of smallentities. The rule does not add any newrequirements, merely delaying theeffective date of two sections of the rule,and allowing a previously delayedsection to go into effect in 2004.

State Plans

The 26 States and territories withtheir own OSHA-approved occupationalsafety and health plans must adopt acomparable regulation within six

months of the publication date of thisfinal regulation. These states andterritories are: Alaska, Arizona,Cali fornia, Hawaii , Indiana, Iowa,Kentucky, Maryland, Michigan,Minnesota, Nevada, New Mexico, NorthCarolina, Oregon, Puerto Rico, SouthCarolina, Tennessee, Utah, Vermont,Virginia, Virgin Islands, Washington,

and Wyoming. Connecticut, New Jersey,and New York have OSHA approvedState Plans that apply to state and localgovernment employees only.

Due to the short amount of timeremaining in 2002, some of the statesmay not complete their rulemakingactions by January 1, 2003. However,the states wi ll complete rulemaking todelay the effective dates of theirequivalent regulations shortly thereafter.In the meantime, employers in thesestates will use the same forms used infederal jurisdiction states (which asnoted above do not currently contain

the columns or MSD definition) toensure the uniformity of national dataper Section 1904.37.

Executive Order

This document has been deemedsignificant under Executive Order 12866and has been reviewed by OMB.

Authority

This document was prepared underthe direction of John Henshaw,Assistant Secretary for OccupationalSafety and Health. It is issued underSection 8 of the Occupational Safetyand Health Act (29 U.S.C. 657) and 5U.S.C. 553.

Signed at Washington, DC this 11th day of December, 2002.

John Henshaw,

Assistant Secretary of Labor.

For the reasons stated in thepreamble, OSHA hereby amends 29 CFRPart 1904 as set forth below:

PART 1904 —[AMENDED]

1. The authority citation for part 1904continues to read as follows:

Authority: 29 U.S.C. 657, 658, 660, 666,669, 673, Secretary of Labor’s Order No. 3–2000 (65 FR 50017), and 5 U.S.C. 533.

2. Revise§ 1904.10(b)(7) to read asfollows:

§1904.10 Recording criteria for casesinvolving occupational hearing loss.

* * * * *(b) * * *(7) How do I complete the 300 Log for

a hearing loss case? When you enter a recordable hearing

loss case on the OSHA 300 Log, youmust check the 300 Log column for

hearing loss. (Note: § 1904.10(b)(7) iseffective beginning January 1, 2004.)

* * * * *

3. Revise the note to § 1904.12 to readas follows:

§1904.12 Recording criteria for casesinvolving work-related musculoskeletaldisorders.

* * * * *Note to §§ 1904.12: This section is effective

January 1, 2004. From January 1, 2002 untilDecember 31, 2003, you are required torecord work-related injuries and illnessesinvolving muscles, nerves, tendons,ligaments, joints, cartilage and spinal discs inaccordance with the requirements applicableto any injury or i llness under §§ 1904.5,§§ 1904.6, §§ 1904.7, and §§ 1904.29. Forentry (M) on the OSHA 300 Log, you mustcheck either the entry for ‘‘injury’’ or ‘‘allother illnesses.’’

4. Revise § 1904.29(b)(7)(vi) to read asfollows:

§1904.29 Forms.

* * * * *(b) * * *(7) * * *(vi) Other illnesses, if the employee

independently and voluntarily requeststhat his or her name not be entered onthe log. Musculoskeletal disorders(MSDs) are not considered privacyconcern cases. (Note: The first sentenceof this §§ 1904.29(b)(7)(vi) is effectiveon January 1, 2002. The second sentenceis effective beginning on January 1,2004.)

* * * * *[FR Doc. 02–31619 Filed 12–16–02; 8:45 am]

BILLING CODE 4510 –26 –P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 253

[Docket No. 2002 –4 CARP NCBRA]

Noncommercial EducationalBroadcasting Compulsory License

AGENCY: Copyright Office, Library of

Congress.ACTION: Final rule.

SUMMARY: The Copyright Office of theLibrary of Congress is publishing finalregulations adjusting the royalty ratesand terms under the Copyright Act forthe noncommercial educationalbroadcasting compulsory license for theperiod 2003 through 2007.

EFFECTIVE DATE: January 1, 2003.

FOR FURTHER INFORMATION CONTACT:David O. Carson, General Counsel, or

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Federal Register / Vol. 67, No. 242 / Tuesday, December 17, 2002 / Rules and Regulations 77171

Will iam J. Roberts, Jr., Senior A ttorney,Copyright Arbitration Royalty Panel(CARP), P.O. Box 70977, SouthwestStation, Washington, DC 20024. Telephone (202) 707–8380. Telefax:(202) 252–3423

SUPPLEMENTARY INFORMATION:

Background

Section 118 of the Copyright Act, 17U.S.C., creates a compulsory license forthe use of certain copyrighted works inconnection with noncommercialbroadcasting. Terms and rates for thiscompulsory license applicable to partieswho are not subject to privatelynegotiated licenses are published in 37CFR part 253 and are subject toadjustment at five-year intervals. This isa window year for such an adjustment.

After extended negotiations initiatedby the Library of Congress, the partiesin this docket submitted proposals foradjustment of the rates and terms

contained in part 253. Section 251.63(b)of the Copyright Arbitration RoyaltyPanel (’’CARP’’) rules, 37 CFR, providesthat terms and rates for a statutorylicense may be adopted by the Librarianof Congress in l ieu of a CARPproceeding if all parties reach asettlement, and the Librarian publishesthe negotiated terms and rates in theFederal Register for notice andcomment. If no one objects to theproposed rates and terms and submits aNotice of Intent to Participate in a CARPproceeding, then the Librarian mayadopt the negotiated rates and terms as

final.On October 30, 2002, the Librarypublished a Notice of ProposedRulemaking (‘‘NPRM’’) setting forth therates and terms negotiated by the partiesin this proceeding for the period 2003–2007. 67 FR 66090 (October 30, 2002). The NPRM specified that objectingparties must submit their objections andNotices of Intent to Participate byDecember 2, 2002. No filings werereceived. Consequently, pursuant to 37CFR 251.63(b),* the Librarian moves tofinal rules.

Effective Date

The final section 118 royalty termsand rates are effective on January 1,2003. January 1, 2003, is less than 30days from publication of the notice of the final rule. Section 553 of theAdministrative Procedure Act, 5 U.S.C.,provides that final rules shall not beeffective less than 30 days from theirpublication unless, inter alia, the agencyfinds good cause, a description of whichmust be published with the rule. 5U.S.C. 553(d)(3). Good cause exists inthis case.

The final rules are the product of negotiations between representatives of copyright owners and copyright users.All owners and users affected by theserates have already had the opportunityto participate in the process, and anyadditional interested parties wereafforded further opportunity toparticipate when the Copyright Office

published them as proposed rules in theFederal Register. 67 FR 66090 (October30, 2002). The copyright owners andusers who negotiated the final ruleshave the expectation that they willbecome effective on January 1, 2003.Even those parties affected by the ruleswho did not participate in theirnegotiation are aware that 2002 is awindow year for new rates and terms forthe 2003–2007 period, beginning on January 1, 2003. See 67 FR at 66092.

The negotiations that produced thesefinal rules took a considerable amountof time to orchestrate and did not result

in final agreements until late this year.In addition, some of the rates aredependent upon changes in theConsumer Price Index, informationwhich was not known until the end of November. This resulted in a delay inpublishing the final rules until now.Because of these circumstances, andbecause no parties affected by theserules are prejudiced, good cause existsthat they become effective less than 30days from date of publication of thisNotice.

List of Subjects in 37 CFR Part 253

Copyright, Music, Radio, Television,Rates.

Final Regulations

For the reasons set out in thepreamble, the Library of Congressamends part 253 of 37 CFR as follows:

PART 253 —USE OF CERTAINCOPYRIGHTED WORKS INCONNECTION WITHNONCOMMERCIAL EDUCATIONALBROADCASTING

1. The authority citation for part 253continues to read as follows:

Authority: 17 U.S.C. 118, 801(b)(1) and803.

2. Section 253.1 is amended byremoving the phrase ‘‘ January 1, 1998and ending on December 31, 2002’’ andadding ‘‘ January 1, 2003 and ending onDecember 31, 2007’’ in its place.

§253.3 [Removed and Reserved]

3. Section 253.3 is removed andreserved.

4. Section 253.4 is amended asfollows:

a. In the introductory text, byremoving ‘‘, or compositions in therepertories of ASCAP, BMI, or SESACwhich are licensed on terms andconditions established by a dulyempowered Copyright ArbitrationRoyalty Panel pursuant to theprocedures set forth in subchapter B of 37 CFR, part 251.’’;

b. By revising paragraph (a);c. in paragraph (c), by removing the

phrase ‘‘ January 1, 1998, to December31, 2002’’ and adding ‘‘ January 1, 2003,to December 31, 2007’’ in its place; and

d. in paragraph (d), by removing‘‘three’’ and adding ‘‘four’’ in its place.

The revisions to § 253.4 read as follows:

§253.4 Performance of musicalcompositions by PBS, NPR and other publicbroadcasting entities engaged in theactivities set forth in 17 U.S.C. 118(d).

* * * * *

(a) Determination of royalty rate. (1) For

performance of such work in a featurepresentation of PBS:

2003–2007 ............................... $224.22(2) For performance of such a work as

background or theme music in a PBSprogram:

2003–2007 ............................... $56.81(3) For performance of such a work in a

feature presentation of a station of PBS:2003–2007 ............................... $19.16

(4) For performance of such a work asbackground or theme music in a programof a station of PBS:

2003–2007 ............................... $4.04(5) For the performance of such a work in a

feature presentation of NPR:2003–2007 ............................... $22.73

(6) For the performance of such a work asbackground or theme music in an NPRprogram:

2003–2007 ............................... $5.51(7) For the performance of such a work in a

feature presentation of a station of NPR:2003–2007 ............................... $1.61

(8) For the performance of such a work asbackground or theme music in a programof a station of NPR:

2003–2007 ............................... $.57(9) For purposes of this schedule the rate

for the performance of theme music in anentire series shall be double the singleprogram theme rate.

(10) In the event the work is first performed in a program of a station of PBS

or NPR, and such program is subsequently distributed by PBS or NPR, anadditional royalty payment shall be madeequal to the difference between the ratespecified in this section for a program of a station of PBS or NPR, respectively,and the rate specified in this section for aPBS or NPR program, respectively.

* * * * *

§253.5 [Amended]

5. Section 253.5(c)(3) is amended byremoving ‘‘$66’’ and adding ‘‘$80’’ in itsplace.

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77172 Federal Register / Vol. 67, No. 242 / Tuesday, December 17, 2002 / Rules and Regulations

6. Section 253.6(c) is revised to readas follows:

§253.6 Performance of musicalcompositions by other public broadcastingentities.

* * * * *(c) Royalty rate. A public broadcasting

entity within the scope of this section

may perform published nondramaticmusical compositions subject to thefollowing schedule of royalty rates:

(1) For all such compositions in therepertory of ASCAP, in 2003, $460; in2004, $475; in 2005, $495; in 2006,$515; in 2007, $535.

(2) For all such compositions in therepertory of BMI, in 2003, $460; in 2004,$475; in 2005, $495; in 2006, $515; in$2007, $535.

(3) For all such compositions in therepertory of SESAC, in 2003, $98; in2004, $100; in 2005, $102; in 2006,$104; in 2007, $106.

(4) For the performance of any other

such compositions, in 2003 through2007, $1.

* * * * *7. Section 253.7 is amended as

follows:a. In paragraph (a), by removing ‘‘or

compositions represented by the HarryFox Agency, Inc., SESAC, and/or theNational Music Publishers Associationand which are licensed on terms andconditions established by a dulyempowered Copyright ArbitrationRoyalty Panel pursuant to theprocedures set forth in thissubchapter,’’; and

b. By revising paragraph (b). The revisions to§ 253.7 read asfollows:

§253.7 Recording rights, rates and terms.

* * * * *(b) Royalty rate. (1)(i) For uses

described in paragraph (a) of thissection of a musical work in a PBSdistributed program, the royalty feesshall be calculated by multiplying thefollowing per-composition rates by thenumber of different compositions in thatPBS-distributed program:

2003–2007

Feature ..................................... $112.40Concert feature (per minute) ... 33.75Background .............................. 56.81 Theme:

Single program or first series program ...................... 56.81

Other series program ........... 23.06

(ii) For such uses other than in a PBSdistributed television program, theroyalty fee shall be calculated bymultiplying the following percomposition rates by the number of different compositions in that program:

2003–2007




(ii i) In the event the work is firstrecorded other than in a PBS-distributedprogram, and such program issubsequently distributed by PBS, anadditional royalty payment shall bemade equal to the difference betweenthe rate specified in this section forother than a PBS-distributed programand the rate specified in this section fora PBS-distributed program.

(2) For uses licensed herein of amusical work in a NPR program, theroyalty fees shall be calculated bymultiplying the following percomposition rates by the number of different compositions in any NPRprogram distributed by NPR. Forpurposes of this schedule ‘‘NationalPublic Radio’’ programs include allprograms produced in whole or in partby NPR, or by any NPR station ororganization under contract with NPR.

2003–2007




(3) For purposes of this schedule, a‘‘Concert Feature’’ shall be deemed to bethe nondramatic presentation in aprogram of all or part of a symphony,concerto, or other serious workoriginally written for concertperformance or the nondramaticpresentation in a program of portions of a serious work originally written foropera performance.

(4) For such uses other than in anNPR-produced radio program:

2003–2007

Feature ..................................... $.78Feature (concert)(per half

hour) ..................................... 1.63Background .............................. .39

(5) The schedule of fees covers use fora period of three years following thefirst use. Succeeding use periods willrequire the following additionalpayment: additional one-year period—25 percent of the initial three-year fee;second three-year period—50 percent of the initial three-year fee; each three-yearfee thereafter—25 percent of the initialthree-year fee; provided that a 100

percent additional payment prior to theexpiration of the first three-year periodwill cover use during all subsequent useperiods without limitation. Suchsucceeding uses which are subsequentto December 31, 2007, shall be subjectto the royalty rates established in thisschedule.

* * * * *

8. Section 253.8 is amended byrevising paragraphs (b)(1) and (f)(1) toread as follows (the undesignatedparagraph following (b)(1) isunchanged):

§253.8 Terms and rates of royaltypayments for the use of published pictorial,graphic, and sculptural works.

* * * * *

(b) * * *

(1) The following schedule of ratesshall apply to the use of works withinthe scope of this section:

(i) For such uses in a PBS-distributed

program:

2003–2007

(A) For featured display of awork ...................................... $68.67

(B) For background and montage display .......................... 33.49

(C) For use of a work for program identification or forthematic use ......................... 135.37

(D) For the display of an artreproduction copyrightedseparately from the work of fine art from which thework was reproduced irrespective of whether the re

produced work of fine art iscopyrighted so as to be sub ject also to payment of adisplay fee under the termsof the schedule ..................... 44.47

(ii) For such uses in other than PBSdistributed programs:

2003–2007

(A) For featured display of awork ...................................... $44.47

(B) For background and montage display .......................... 22.80

(C) For use of a work for aprogram identification or for

thematic use ......................... 90.91(D) For the display of an art

reproduction copyrightedseparately from the work of fine art from which thework was reproduced irrespective of whether the reproduced work of fine art iscopyrighted so as to be sub ject also to payment of adisplay fee under the termsof this schedule .................... 22.80

* * * * *

(f) * * *

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(1) The rates of this schedule are forunlimited use for a period of three yearsfrom the date of the first use of the workunder this schedule. Succeeding useperiods will require the followingadditional payment: Addi tional oneyear period—25 percent of the initialthree-year fee; second three-yearperiod—50 percent of the initial three

year fee; each three-year periodthereafter—25 percent of the initialthree-year fee; provided that a 100percent additional payment prior to theexpiration of the first three-year periodwill cover use during all subsequent useperiods without limitation. Suchsucceeding uses which are subsequentto December 31, 2007, shall be subjectto the rates established in this schedule.

* * * * *

9. In § 253.10, the first sentence inparagraph (a) is revised to read:

§253.10 Cost of living adjustment.

(a) On December 1, 2003, theLibrarian of Congress shall publish intheFederal Register a notice of thechange in the cost of living asdetermined by the Consumer PriceIndex (all consumers, all items) duringthe period from the most recent Indexpublished prior to December 1, 2002, tothe most recent Index published prior toDecember 1, 2003. * * *

* * * * *

Dated: December 3, 2002.

Marybeth Peters,

Register of Copyrights.

James H. Billington,The Librarian of Congress.

[FR Doc. 02–31620 Filed 12–16–02; 8:45 am]

BILLING CODE 1410 –31 –P

FEDERAL COMMUNICATIONSCOMMISSION

47 CFR Part 1

[MD Docket No. 01 –76; FCC 02 –320]

Assessment and Collection ofRegulatory Fees for Fiscal Year 2001

AGENCY: Federal CommunicationsCommission.

ACTION: Final rule; denial of petition forreconsideration.

SUMMARY: In this document, theCommission denies the petition forreconsideration of Bennet & Bennet,PLLC, on behalf of its local multipointdistribution service (LMDS) clients,filed August 10, 2001.

FOR FURTHER INFORMATION CONTACT: RobFream, Office of Managing Director at(202) 418–0408 or Roland Helvajian,

Office of Managing Director at (202)418–0444.

SUPPLEMENTARY INFORMATION: Adopted:November 21, 2002; Released December4, 2002.

I. Introduction

1. By this order we deny the petitionfor reconsideration of Bennet & Bennet,

PLLC, on behalf of its LMDS clients,fi led August 10, 2001.1Bennet seeksreconsideration of Assessment of Regulatory Fees for Fiscal Year 2001, 16FCC Rcd 13525 (2001), 66 FR 36177, July 11, 2001, (2001 Fee Order), to theextent that order reaffirmed theclassification of the LMDS within thecategory of MDS services for purposes of assessing regulatory fees for FY 2001. Asa result of this determination, LMDSfacilities are subject to an annual fee of $450 per call sign. Bennet asserts thatLMDS should be classified as amicrowave service, which would

subject it to a $5 annual fee payable foran entire ten year license term at thetime of renewal (total payment $50).Bennet also argues that the FY 2001MDS fee is excessive.

II. Background

2. In the 2001 Fee Order, theCommission rejected the arguments of Winstar Communications, Inc. thatLMDS should be reclassified as amicrowave service. Fee Order, 16 FCCRcd 13532 paragraph 22. Winstar justified its proposal by arguing thatthere had been increased administrativeactivity associated with part 21 MDS

this year, whereas there had been littleactivity associated with LMDS. It alsonoted generally that it could think of nosimilarity between LMDS and MDS andno reason why LMDS should be treateddifferently than other part 101 fixedMicrowave services. Sprint opposed theproposal, noting that the LMDSadministrative burden had been higherin the year 2000 and had beensupported by fee contributions by MDSusers. Further, Sprint argued that therewere many similarities between theservices, including that they bothprovided the same high speed voice and

data services, although LMDS focusedon large business users and MMDSfocused on residential consumers. TheCommission held that although LMDSand microwave services may utilize thesame equipment, LMDS is operationallysimilar to MDS. The Commissionconcluded that this functionalclassification had proven adequate formore than 2 years and there was noreason to change it. Additionally, the

1Sprint Corp. filed an opposition on August 27,2001.

Commission rejected the arguments of Worldcom, Inc. that the increase in theMDS fee from $275 in FY 2000 to $450was excessive. Fee Order, 16 FCC Rcdat 13531–32 paragraphs 18–20. TheCommission found that the $450 figurereflected the best accounting methodsand the most accurate data available.

III. Bennet’s Petition forReconsideration

3. Bennet, who did not file commentsearlier in this proceeding, now seeksreconsideration of the Commission’sdecision to continue to include LMDSin the MDS category for assessingregulatory fees. Bennet contends thatLMDS should be included in themicrowave category for purposes of assessing fees. In support of itscontention, Bennet posits thatsignificant differences exist between theLMDS and MDS services. According toBennet, these differences include: That

MDS uses site based licenses andindividually licensed station hub sites,whi le LMDS uses geographically basedlicenses and generally does not useindividually licensed hubs; that MDS isprimarily a one-way video service,while LMDS is primarily a two-wayservice; and that LMDS and MDS usedifferent equipment and networkconfigurations and have differentpropagation characteristics, with LMDSand microwave services having morepropagation limitations. It further statesthat the services serve different markets.In this regard, it notes that LMDS and

other part 101 microwave servicescompete against each other in the sametarget markets and that theCommission’s regulatory fee schemeunjustifiably places LMDS at acompetitive disadvantage because theother part 101 services pay only anominal regulatory fee. It also notes thatlicensing and rulemaking actions forMDS require more administrativeresources than the resources requiredfor LMDS. As to the size of the MDS fee,Bennet maintains that the increase from$275 to $450 is burdensome and notsupported by any correspondingincrease in regulatory costs.

4. Sprint responds that MDS andLMDS are operationally, competitively,and legally similar, both providing highspeed wireless voice and data services,but noting that MDS serves primarilyresidential users and LMDS primarilyserves large business users. Sprintcontends that differences in the cost of licensing LMDS and MDS are irrelevantsince the cost of licensing is notincluded in calculating annual fees. FeeOrder, 16 FCC Rcd at 13595. In Sprint’sview, reclassifying LMDS would

* Corrected text. Original document incorrectly cited 37 CFR 252.63(b).

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