[Federal Register: October 30, 2002 (Volume 67, Number 210)]

[Proposed Rules]               

[Page 66090-66094]





[[Page 66090]]



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LIBRARY OF CONGRESS



Copyright Office



37 CFR Part 253



[Docket No. 2002-4 CARP NCBRA]



 

Noncommercial Educational Broadcasting Compulsory License



AGENCY: Copyright Office, Library of Congress.



ACTION: Notice of proposed rulemaking.



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SUMMARY: The Copyright Office of the Library of Congress is publishing 

negotiated rate adjustments, under the Copyright Act, for the 

noncommercial educational broadcasting compulsory license for the 

period 2003 through 2007. The proposed rate adjustments shall become 

final unless one or more parties with a significant interest in the 

rates notifies the Office that it will litigate the rate adjustment 

before a Copyright Arbitration Royalty Panel ("CARP").



DATES: Notices of Intent to Participate in a CARP proceeding are due on 

or before December 2, 2002.



ADDRESSES: If sent by mail, an original and five copies of Notices of 

Intent to Participate should be addressed to: Copyright Arbitration 

Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 

20024. If hand delivered, an original and five copies of Notices of 

Intent to Participate should be brought to: Office of the Copyright 

General Counsel, James Madison Memorial Building, Room LM-403, First 

and Independence Avenue, SE., Washington, DC 20540.



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

William J. Roberts, Jr., Senior Attorney, Copyright Arbitration Royalty 

Panel (CARP), P.O. Box 70977, Southwest Station, Washington, DC 20024. 

Telephone (202) 707-8380. Telefax: (202) 252-3423



SUPPLEMENTARY INFORMATION:



Background



    Section 118 of the Copyright Act, 17 U.S.C., creates a compulsory 

license for the use of certain copyrighted works in connection with 

noncommercial broadcasting. Terms and rates for this compulsory license 

applicable to parties who are not subject to privately negotiated 

licenses are published in 37 CFR part 253 and are subject to adjustment 

at five-year intervals. This is a window year for such an adjustment.

    On April 1, 2002, the Library of Congress published a notice in the 

Federal Register announcing a voluntary negotiation period for 

adjustment of the section 118 rates and requested interested parties to 

submit their Notices of Intent to Participate in a CARP proceeding. The 

Library also announced the schedule for the precontroversy discovery 

period should a CARP proceeding be necessary. 67 FR 15414 (April 1, 

2002). The Library received Notices of Intent to Participate from the 

following users of the section 118 license: National Public Radio 

("NPR"); the Public Broadcasting System ("PBS"); the Corporation 

for Public Broadcasting ("CPB"); the American Council on Education 

("ACE"); the National Religious Broadcasters Music License Committee 

("NRBMLC"); the National Federation of Community Broadcasters 

("NFCB"); and WCPE-FM. The Library received Notices of Intent to 

Participate from the following copyright owners whose works are subject 

to use under section 118: the American Society of Composers, Authors 

and Publishers ("ASCAP"); Broadcast Music, Inc. ("BMI"); SESAC, 

Inc. ("SESAC"); the National Music Publishers Association ("NMPA"); 

and the Harry Fox Agency, Inc. ("HFA").

    Not long after the issuance of the April 1 Notice, representatives 

of the above-listed parties informed the Library that settlement 

negotiations were proceeding well and, in the interest of avoiding a 

CARP proceeding, requested additional time to negotiate. On June 19, 

2002, the Library granted their request and issued an order directing 

them to submit their voluntary agreements and proposals for adjustment 

of the section 118 rates and terms by July 1, 2002. The Library also 

requested those not reaching a settlement by this date to identify 

themselves for purposes of scheduling a CARP proceeding. Fortunately, 

settlements were reached by all the parties.



This Notice



    The Library has received voluntary license agreements for rates and 

terms under the section 118 license, and proposals to adjust the 

section 118 rates and terms in 37 CFR part 253. There is a distinction 

between voluntary agreements and proposals. Section 118(b) of the 

Copyright Act provides that "any owners of copyright in published 

nondramatic musical works and published pictorial, graphic, and 

sculptural works and any public broadcasting entities, respectively, 

may negotiate and agree upon the terms and rates of royalty payments * 

* * "provided that copies of such agreements are filed in the 

Copright Office within thirty days of execution * * *" 17 U.S.C. 

118(b)(1)&(2). A particular copyright owner may negotiate with a 

particular public broadcasting entity for the use of that copyright 

owners works, and that agreement governs the royalty fees and terms of 

payment to be made by the public broadcasting entity provided that the 

agreement is deposited with the Copyright Office. However such an 

agreement would not govern the rates to be paid by another public 

broadcasting entity not party to the agreement.

    The statute provides that for those copyright owners and public 

broadcasting entities not subject to an agreement, the Librarian shall 

convene a CARP "to determine and publish in the Federal Register a 

schedule of rates and terms which * * * shall be binding on all owners 

of copyright in works specified by this subsection and public 

broadcasting entities. * * *" 17 U.S.C. 118(b)(3). Where the parties 

in this proceeding have not been able to negotiate license agreements, 

due to the fact that either the copyright owners or the users of the 

works affected by section 118 have not participated in negotiations 

(i.e. they are not parties to this proceeding), the parties have 

proposed adjustments to the section 118 rates and terms for these 

works. These proposals are subject to Sec.  251.63(b) of the CARP 

rules, which provides that "[i]n the case of a settlement among the 

parties to a proceeding, the Librarian may, upon the request of the 

parties, submit the agreed upon rate to the public in a notice-and-

comment proceeding. The Librarian may adopt the rate embodied in the 

proposed settlement without convening an arbitration panel, provided 

that no opposing comment is received by the Librarian from a party with 

an intent to participate in a CARP proceeding." 37 CFR 251.63(b).

    The Librarian will adopt the negotiated and proposed section 118 

rates and terms for the period 2003 through 2007 unless one or persons 

objects on or before December 2, 2002. However, a simple objection to a 

proposed rate or term is not sufficient. As provided by Sec. 251.63(b) 

of the CARP rules, an objecting party must file a Notice of Intent to 

Participate in a CARP proceeding along with its objection and must be 

prepared to participate fully in a CARP proceeding to adjust the rates 

and/or terms to which it objects. Furthermore, the objecting party must 

have a significant interest in the rates and/or terms to which it is 

objecting to be eligible to participate in the CARP proceeding.



[[Page 66091]]



Summary of Adjustments to 37 CFR Part 253



    Part 253 of the CARP rules sets forth the rates and terms for the 

section 118 license. These regulations are quite lengthy. Rather than 

republish the entire text of these regulations, the Library is only 

printing those portions that will be changed as a result of the parties 

agreements and proposals. The following is a section-by-section summary 

of the proposed changes.



1. Section 253.1 General



    Section 253.1 will be amended to reflect that the rates and terms 

set forth in part 253 of 37 CFR will apply for the period beginning 

January 1, 2003, and ending December 31, 2007.



2. Section 253.2 Definition of public broadcasting entity



    No change.



3. Section 253.3 Performance of musical compositions in the repertory 

of ASCAP and BMI by PBS and NPR and other public broadcasting entities 

engaged in the activities set forth in 17 U.S.C. 118(d).



    ASCAP and BMI have negotiated voluntary agreements with PBS, NPR, 

and CPB pursuant to 17 U.S.C. 118(b). PBS/NPR/CPB represent (a) PBS; 

(b) PBS member television stations; (c) noncommercial television 

stations unaffiliated with PBS but eligible for CPB funding; (d) NPR; 

(e) NPR affiliated radio stations; and (f) noncommercial radio stations 

unaffiliated with NPR but eligible for CPB funding. Because these 

organizations are covered by voluntary licenses, there is no longer 

need for this section, and the Library is proposing that it be deleted.



4. Section 253.4 Performance of musical compositions by PBS, NPR and 

other public broadcasting entities engaged in the activities set forth 

in 17 U.S.C. 118(d).



    This section sets forth the rates applicable to public broadcasters 

who perform the musical compositions of copyright owners who are not 

represented by ASCAP, BMI, SESAC, HFA or the NMPA. For these 

unaffiliated copyright owners, PBS/NPR/CPB propose the following new 

rates:

    a. For performance of a nondramatic musical composition in a 

feature presentation of PBS: $224.22, up from $211.53.

    b. For performance of a nondramatic musical composition as 

background or theme music in a PBS program: $56.81, up from $53.59.

    c. For performance of a nondramatic musical composition in a 

feature presentation of a station of PBS: $19.16, up from $18.08

    d. For performance of a nondramatic musical composition as 

background or theme music in a program of a station of PBS: $4.04, up 

from $3.81.

    e. For performance of a nondramatic musical composition in a 

feature presentation of NPR: $22.73, up from $21.44.

    f. For performance of a nondramatic musical composition as 

background or theme music in a NPR program: $5.51, up from $5.20.

    g. For performance of a nondramatic musical composition in a 

feature presentation of a station of NPR: $1.61, up from $1.52.

    h. For performance of a nondramatic musical composition as 

background or theme music in a program of a station of NPR: $.57, up 

from $.54.

    PBS/NPR/CPB also propose to amend subsection (d) to permit the 

rates set forth above to be applicable to the performance of a 

television or radio program for a period of four years after the first 

performance of the program, rather than the current three-year 

limitation.



5. Section 253.5 Performance of musical compositions by public 

broadcasting entities licensed to colleges and universities



    This section is applicable to the performance of musical 

compositions by colleges, universities and other nonprofit educational 

institutions which are not affiliated with NPR. ASCAP, BMI and SESAC, 

in negotiation with ACE and NRBMLC, propose the following adjustments 

for the use of music in their repertories.\1\ For ASCAP compositions, 

the proposal is that the current rate of $244 per year be adjusted by 

the change in the cost of living as determined by the Consumer Price 

Index ("CPI") during the period from the most recent Index published 

prior to December 1, 2002, to the most recent Index published prior to 

December 1, 2003. A cost of living adjustment would then be performed 

each year thereafter through 2007. The proposal is the same for BMI 

compositions: $244 per year adjusted by the annual change in the CPI 

through 2007. For SESAC compositions, the proposal is $80 per year, up 

from $66, with the annual CPI adjustment through 2007.

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    \1\ NFCB supports these rates as well.

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6. Section 253.6 Performance of musical compositions by other public 

broadcasting entities



    This section applies to the performance of nondramatic musical 

compositions by radio stations not licensed to colleges, universities 

or other nonprofit educational institutions and which are not 

affiliated with NPR. NRBMLC and NFCB have reached an agreement with the 

copyright owners in this proceeding and propose the following 

adjustments.

    For performance of all the compositions in the repertory of ASCAP: 

$460 in 2003; $475 in 2004; $495 in 2005; $515 in 2006; and $535 in 

2007. The same rates are proposed for the performance of all 

compositions in the repertory of BMI. For performance of all 

compositions in the repertory of SESAC: $98 in 2003; $100 in 2004; $102 

in 2005; $104 in 2006; and $106 in 2007. NRBMLC also proposes that the 

rate of $1 for performance of a composition of an unaffiliated 

copyright owner remain in effect for the 2003-2007 period.



7. Section 253.7 Recording rights, rates and terms



    This section establishes rates and terms for the recording of 

nondramatic performances and displays of musical works on or for the 

radio and television programs of public broadcasting entities, whether 

or not in synchronization or timed relationship with the visual or 

aural content, and for the making, reproduction and distribution of 

copies and phonorecords of public broadcasting programs containing such 

nondramatic performances and displays of musical works solely for the 

purpose of transmission by public broadcasting entities.

    PBS/NPR/CPB propose the following rate adjustments:

    a. For use of a musical work in a PBS-distributed program

    (i) Feature: $112.40, up from $106.04;

    (ii) Concert feature (per minute): $33.75, up from $31.84;

    (iii) Background: $56.81, up from $53.59;

    (iv) Theme:

    Single program or first series: $56.81, up from $53.59

    Other series program: $23.06, up from $21.75.

    b. For use of a musical work other than in a PBS-distributed 

program

    (i) Feature: $9.29, up from $8.76;

    (ii) Concert feature (per minute): $2.44, up from $2.30;

    (iii) Background: $4.04, up from $3.81;



[[Page 66092]]



    (iv) Theme:

    Single program or first series program: $4.04, up from $3.81;

    Other series program: $1.61, up from $1.52.

    c. For use of a musical work in a NPR program

    (i) Feature: $12.17, up from $11.48;

    (ii) Concert feature (per half hour): $17.86, up from $16.85;

    (iii) Background: $6.10, up from $5.75;

    (iv) Theme:

    Single program or first series program: $6.10, up from $5.75;

    Other series program: $2.43, up from $2.29.

    d. For use of a musical work other than in a NPR-produced program:

    (i) Feature: $.78, up from $.74;

    (ii) Feature (concert)(per half hour): $1.63, up from $1.54;

    (iii) Background: $.39, up from $.37.

    This schedule of fees would cover use of musical works for a period 

of three years following the first use. Succeeding use would require an 

additional payment. For an additional use of one year, twenty-five 

percent of the initial three-year fee. For a second three-year period, 

fifty percent of the initial three-year fee. For each three-year period 

thereafter, twenty-five percent of the initial three-year fee.

    In addition, PBS/NPR/CPB request that the proposed rates apply to a 

"use" of a musical work, as opposed to the "broadcast" of a musical 

work as described in the current regulations.



8. Section 253.8 Terms and rates of royalty payments for the use of 

published pictorial, graphic, and sculptural works



    This section establishes rates and terms for use of published 

pictorial, graphic and sculptural works by public broadcasting 

entities. PBS/NPR/CPB propose the following rate adjustments:

    a. For use of a work in a PBS-distributed program:

    (i) For a featured display of a work: $68.67, up from $64.78;

    (ii) For background and montage display: $33.49, up from $31.59;

    (iii) For use of a work for program identification or for thematic 

use: $135.37, up from $127.71;

    (iv) For display of an art reproduction copyrighted separately from 

the work of fine art from which the work was reproduced, irrespective 

of whether the reproduced work of fine art is copyrighted so as to be 

subject also to payment of a display fee under the terms of the 

schedule: $44.47, up from $41.95.

    b. For use of a work in other than a PBS-distributed program:

    (i) For a featured display of a work: $44.47, up from $41.95;

    (ii) For background and montage display: $22.80, up from $21.51;

    (iii) For use of a work for program identification or for thematic 

use: $90.91, up from $85.76;

    (iv) For display of an art reproduction copyrighted separately from 

the work of fine art from which the work was reproduced, irrespective 

of whether the reproduced work of fine art is copyrighted so as to be 

subject also to payment of a display fee under the terms of the 

schedule: $22.80, up from $21.51.

    This schedule of fees would cover the use of works for a period of 

three years from the date of their first use. Succeeding use would 

require an additional payment. For an additional use of one year, 

twenty-five percent of the initial three-year fee. For a second three-

year period of use, fifty percent of the initial three-year fee. For 

each three year period thereafter, twenty-five percent of the initial 

three-year fee.



9. Section 253.9 Unknown copyright owners



    No change.



10. Section 253.10 Cost of living adjustment



    The dates in this section would be changed to reflect the annual 

cost of living adjustment for the rates in Sec. 253.5 for the new 

2003-2007 period.



11. Section 253.11 Notice of restrictions on use of reproductions of 

transmission programs



    No change.



List of Subjects in 37 CFR Part 253



    Copyright, Music, Radio, Television, Rates.



Proposed Regulations



    For the reasons set out in the preamble, the Copyright Office 

proposes amending part 253 of 37 CFR as follows:



PART 253--USE OF CERTAIN COPYRIGHTED WORKS IN CONNECTION WITH 

NONCOMMERCIAL EDUCATIONAL BROADCASTING



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

follows:



    Authority: 17 U.S.C. 118, 801(b)(1) and 803.



    2. Section 253.1 is amended by removing the phrase "January 1, 

1998 and ending on December 31, 2002" and adding "January 1, 2003 and 

ending on December 31, 2007" in its place.

    3. Section 253.3 is removed and reserved.

    4. Section 253.4 is amended as follows:

    a. In the introductory text, by removing ", or compositions in the 

repertories of ASCAP, BMI, or SESAC which are licensed on terms and 

conditions established by a duly empowered Copyright Arbitration 

Royalty Panel pursuant to the procedures 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 

December 31, 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 Sec.  253.4 read as follows:





Sec.  253.4  Performance of musical compositions by PBS, NPR and other 

public broadcasting entities engaged in the activities set forth in 17 

U.S.C. 118(d).



* * * * *





  (a) Determination of royalty rate. (1) For performance of such work in

                     a feature presentation of PBS:

    2003-2007................................................   $224.22

(2) For performance of such a work as background or theme music in a PBS

                                program:

    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 as background or theme music in a

                      program of 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 as background or theme music in

                            an NPR program:

    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 as background or theme music in a

                      program of a station of NPR:

    2003-2007................................................      $.57

(9) For purposes of this schedule the rate for the performance of theme

 music in an entire series shall be double the single program 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, an additional royalty payment shall be made equal to the

 difference between the rate specified in this section for a program of

 a station of PBS or NPR, respectively, and the rate specified in this

 section for a PBS or NPR program, respectively.





* * * * *



[[Page 66093]]



    5. Section 253.5(c)(3) is amended by removing "$66" and adding 

"$80" in its place.

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





Sec.  253.6  Performance of musical compositions by other public 

broadcasting entities.



* * * * *

    (c) Royalty rate. A public broadcasting entity within the scope of 

this section may perform published nondramatic musical compositions 

subject to the following schedule of royalty rates:

    (1) For all such compositions in the repertory of ASCAP, in 2003, 

$460; in 2004, $475; in 2005, $495; in 2006, $515; in 2007, $535.

    (2) For all such compositions in the repertory of BMI, in 2003, 

$460; in 2004, $475; in 2005, $495; in 2006, $515; in $2007, $535.

    (3) For all such compositions in the repertory of SESAC, in 2003, 

$98; in 2004, $100; in 2005, $102; in 2006, $104; in 2007, $106.

    (4) For the performance of any other such compositions, in 2003 

through 2007, $1.

* * * * *

    7. Section 253.7 is amended as follows:

    a. in paragraph (a), by removing "or compositions represented by 

the Harry Fox Agency, Inc., SESAC, and/or the National Music Publishers 

Association and which are licensed on terms and conditions established 

by a duly empowered Copyright Arbitration Royalty Panel pursuant to the 

procedures set forth in this subchapter,"; and

    b. by revising paragraph (b).

    The revisions to Sec.  253.7 read as follows:





Sec.  253.7  Recording rights, rates and terms.



* * * * *

    (b) Royalty rate. (1)(i) For uses described in paragraph (a) of 

this section of a musical work in a PBS-distributed program, the 

royalty fees shall be calculated by multiplying the following per-

composition rates by the number of different compositions in that PBS-

distributed program:



                           2003-2007



Feature.......................................................   $112.40

Concert feature (per minute)..................................     33.75

Background....................................................     56.81

Theme:

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

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





    (ii) For such uses other than in a PBS-distributed television 

program, the royalty fee shall be calculated by multiplying the 

following per-composition rates by the number of different compositions 

in that program:



                           2003-2007



Feature.......................................................     $9.29

Concert feature (per minute)..................................      2.44

Background....................................................      4.04

Theme:

    Single program or first series program....................      4.04

    Other series program......................................      1.61





    (iii) In the event the work is first recorded other than in a PBS-

distributed program, and such program is subsequently distributed by 

PBS, an additional royalty payment shall be made equal to the 

difference between the rate specified in this section for other than a 

PBS-distributed program and the rate specified in this section for a 

PBS-distributed program.

    (2) For uses licensed herein of a musical work in a NPR program, 

the royalty fees shall be calculated by multiplying the following per-

composition rates by the number of different compositions in any NPR 

program distributed by NPR. For purposes of this schedule "National 

Public Radio" programs include all programs produced in whole or in 

part by NPR, or by any NPR station or organization under contract with 

NPR.



                           2003-2007



Feature.......................................................    $12.17

Concert feature (per minute)..................................     17.86

Background....................................................      6.10

Theme:

    Single program or first series program....................      6.10

    Other series program......................................      2.43





    (3) For purposes of this schedule, a "Concert Feature" shall be 

deemed to be the nondramatic presentation in a program of all or part 

of a symphony, concerto, or other serious work originally written for 

concert performance or the nondramatic presentation in a program of 

portions of a serious work originally written for opera performance.

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



                           2003-2007



Feature.......................................................      $.78

Feature (concert) (per half hour).............................      1.63

Background....................................................       .39





    (5) The schedule of fees covers use for a period of three years 

following the first use. Succeeding use periods will require the 

following additional payment: 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 year fee thereafter--25 percent of 

the initial three year fee; provided that a 100 percent additional 

payment prior to the expiration of the first three year will cover use 

during all subsequent use periods without limitation. Such succeeding 

uses which are subsequent to December 31, 2007, shall be subject to the 

royalty rates established in this schedule.

* * * * *

    8. Section 253.8 is amended by revising paragraphs (b)(1) and 

(f)(1) to read as follows:





Sec.  253.8  Terms and rates of royalty payments for the use of 

published pictorial, graphic, and sculptural works.



* * * * *

    (b) * * * (1) The following schedule of rates shall apply to the 

use of works within the scope of this section:

    (i) For such uses in a PBS-distributed program:



                           2003-2007



(A) For featured display of a work............................    $68.67

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

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

 thematic use.................................................

(D) For the display of an art reproduction copyrighted             44.47

 separately from the work of fine art from which the work was

 reproduced irrespective of whether the reproduced work of

 fine art is copyrighted so as to be subject also to payment

 of a display fee under the terms of the schedule.............





    (ii) For such uses in other than PBS-distributed programs:



                           2003-2007



(A) For featured display of a work............................    $44.47

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

(C) For use of a work for a program identification or for          90.91

 thematic use.................................................

(D) For the display of an art reproduction copyrighted             22.80

 separately from the work of fine art from which the work was

 reproduced irrespective of whether the reproduced work of

 fine art is copyrighted so as to be subject also to payment

 of a display fee under the terms of this schedule............





* * * * *

    (f) * * * (1) The rates of this schedule are for unlimited use for 

a period of three years from the date of the first use of the work 

under this schedule. Succeeding use periods will require the following 

additional payment: 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 year period thereafter--25 percent 

of the initial three year fee; provided that a 100 percent additional 

payment prior to the expiration of the first three year period



[[Page 66094]]



will cover use during all subsequent use periods without limitation. 

Such succeeding uses which are subsequent to December 31, 2007, shall 

be subject to the rates established in this schedule.

* * * * *

    9. In Sec.  253.10, the first sentence in paragraph (a) is revised 

to read:





Sec.  253.10  Cost of living adjustment.



    (a) On December 1, 2003, the Librarian of Congress shall publish in 

the Federal Register a notice of the change in the cost of living as 

determined by the Consumer Price Index (all consumers, all items) 

during the period from the most recent Index published prior to 

December 1, 2002, to the most recent Index published prior to December 

1, 2003. * * *

* * * * *



    Dated: October 22, 2002.

David O. Carson,

General Counsel.

[FR Doc. 02-27364 Filed 10-29-02; 8:45 am]

BILLING CODE 1410-33-P