Proposed Rule2023-03392
Ex Parte Communications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 17, 2023
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
The U.S. Copyright Office is issuing a notice of proposed rulemaking to establish procedures governing the use of ex parte communications in informal rulemakings. The proposed rule defines ex parte communications, instructs the public on how to request an ex parte meeting with the Office, sets forth the responsibilities of parties after an ex parte meeting, and identifies impermissible ex parte communications.
Full Text
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<title>Federal Register, Volume 88 Issue 33 (Friday, February 17, 2023)</title>
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[Federal Register Volume 88, Number 33 (Friday, February 17, 2023)]
[Proposed Rules]
[Pages 10248-10253]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03392]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201 and 205
[Docket No. 2023-1]
Ex Parte Communications
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Copyright Office is issuing a notice of proposed
rulemaking to establish procedures governing the use of ex parte
communications in informal rulemakings. The proposed rule defines ex
parte communications, instructs the public on how to request an ex
parte meeting with the Office, sets forth the responsibilities of
parties after an ex parte meeting, and identifies impermissible ex
parte communications.
DATES: Comments on the proposed rule must be made in writing and
received by the U.S. Copyright Office no later than 11:59 p.m. Eastern
Time on April 3, 2023.
ADDRESSES: For reasons of Government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="https://copyright.gov/rulemaking/ex-parte-communications">https://copyright.gov/rulemaking/ex-parte-communications</a>. If
electronic submission of comments is not feasible due to lack of access
to a computer or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#d5b8b0b3a195b6baa5aca7bcb2bda1fbb2baa3"><span class="__cf_email__" data-cfemail="2c41494a586c4f435c555e454b4458024b435a">[email protected]</span></a>, or by telephone at
202-707-8350 or Melinda Kern, Attorney-Advisor, by email at
<a href="/cdn-cgi/l/email-protection#7a17111f08143a19150a0308131d120e541d150c"><span class="__cf_email__" data-cfemail="036e6866716d43606c737a716a646b772d646c75">[email protected]</span></a>, or by telephone at 202-707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
Statutory Background
The Copyright Office conducts rulemakings consistent with the
Administrative Procedure Act (``APA'') rules governing informal
rulemakings.\1\ An informal rulemaking includes a notice-and-comment
period, which gives the public an opportunity to respond to an agency's
proposed regulatory action. Unlike formal rulemakings, informal
rulemakings do not require on-the-record hearings or trial-type
procedures,\2\ such as the presentation of evidence.
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\1\ See 5 U.S.C. 553; 17 U.S.C. 701(e).
\2\ See 5 U.S.C. 556, 557 (discussing procedural requirements in
formal rulemakings).
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While the APA sets forth certain requirements for informal
rulemakings,\3\ it does not prohibit agencies from engaging in what are
commonly referred to as ``ex parte communications.'' \4\ The term ``ex
parte'' is a bit of a misnomer in this context. In other legal
contexts, the term means ``[o]n or from one party only, usually without
notice to or argument from the adverse party,'' \5\ and usually refers
to communications with a court by one party. In the rulemaking context,
an ex parte communication is a ``[w]ritten or oral communication []
regarding the substance of an
[[Page 10249]]
anticipated or ongoing rulemaking between . . . agency personnel and
interested persons; and that are not placed in the rulemaking docket at
the time they occur.'' \6\ As informal rulemakings are not adversarial
proceedings, there is normally no ``adverse party.''
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\3\ Id. at 553.
\4\ See Home Box Off., Inc. v. FCC, 567 F.2d 9, 57 (D.C. Cir.
1977) (finding ex parte communications in informal rulemakings
``completely appropriate'' when they ``do not frustrate judicial
review or raise serious questions of fairness''); Vermont Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
524 (1978) (noting that under the APA, ``[a]gencies are free to
grant additional procedural rights in the exercise of their
discretion''); see also Sierra Club v. Costle, 657 F.2d 298, 401-02
(D.C. Cir. 1981) (noting that Congress declined to extend the ex
parte prohibition applicable to formal rulemakings to informal
rulemakings despite being urged to do so); cf. 5 U.S.C. 557(d)
(prohibiting ex parte communications in formal rulemaking
proceedings).
\5\ Black's Law Dictionary (11th ed. 2019).
\6\ 79 FR 35988, 35993 (June 25, 2014) (reflecting
Administrative Conference of the United States Recommendation 2014-
4, ``Ex Parte'' Communications in Informal Rulemaking).
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Office's Prior Handling of Ex Parte Communications in Rulemakings
In the past, the Office has engaged in a limited number of ex parte
communications with interested parties to discuss targeted issues
related to the merits of a rulemaking. For example, in response to
stakeholder requests, the Office provided interested parties the
opportunity to engage in ex parte communications during the seventh and
eighth triennial section 1201 rulemaking.\7\ It offered interested
parties this opportunity in certain other rulemakings, including those
pertaining to royalty reporting practices under section 111 and those
implementing the Orrin G. Hatch-Bob Goodlatte Music Modernization Act
and the Copyright Alternative in Small-Claims Enforcement (``CASE'')
Act of 2020.\8\
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\7\ 82 FR 49550, 49563 (Oct. 26, 2017); U.S. Copyright Office,
Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine
Exceptions to the Prohibition on Circumvention, Recommendation of
the Acting Register of Copyrights 20-21 (2018); see U.S. Copyright
Office, Section 1201 of Title 17 150-51 (2017) (documenting
stakeholder desire for informal communications with the Office);
U.S. Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/1201/2021/ex-parte-communications.html">https://www.copyright.gov/1201/2021/ex-parte-communications.html</a> (last
visited Feb. 9, 2023) (ex parte guidelines for the Eighth Triennial
Section 1201 Proceeding, 2021).
\8\ U.S. Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/music-modernization/related-rulemakings.html">https://www.copyright.gov/music-modernization/related-rulemakings.html</a> (last
visited Feb. 9, 2023) (identifying ex parte guidelines for certain
MMA rulemakings and reflecting over eighty ex parte letter
summaries); U.S. Copyright Office, Copyright Alternative in Small-
Claims Enforcement (CASE) Act of 2020 Rulemakings, <a href="https://www.copyright.gov/about/small-claims/related-rulemakings.html">https://www.copyright.gov/about/small-claims/related-rulemakings.html</a> (last
visited Feb. 9, 2023) (identifying ex parte guidelines for CASE Act
rulemakings).
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In each of these circumstances, the Office communicated the
availability of ex parte meetings in a Federal Register notice and
posted more detailed instructions regarding the ex parte meeting
process on the associated rulemaking's web page.\9\ Generally, the
Office required parties to submit a request identifying the names of
all proposed attendees and the party or parties on whose behalf each
attendee is appearing, and following the meeting, to generate a written
summary of the discussion for the rulemaking record.\10\
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\9\ See, e.g., 86 FR 16156, 16158 (Mar. 26, 2021) (identifying
guidelines for ex parte communication pertaining to CASE Act
rulemakings); 85 FR 65293, 65310 (Oct. 15, 2020) (identifying
guidelines for ex parte communications in the Office's Eighth
Triennial Section 1201 Proceeding, 2021); 84 FR 49966, 49968 (Sept.
24, 2019) (identifying guidelines for ex parte communication for
implementing the MMA's blanket license); 83 FR 65747, 65753-54 (Dec.
21, 2018) (identifying guidelines for ex parte communications in MLC
and DLC designation proceeding); 82 FR 58153, 58154 (Dec. 11, 2017)
(identifying guidelines for ex parte communication pertaining to
proposed amendments to royalty reporting practices under section
111); see also U.S. Copyright Office, Copyright Alternative in
Small-Claims Enforcement (CASE) Act of 2020 Rulemakings, <a href="https://www.copyright.gov/about/small-claims/related-rulemakings.html">https://www.copyright.gov/about/small-claims/related-rulemakings.html</a> (last
visited Feb. 9, 2023); U.S. Copyright Office, Ex Parte
Communications, <a href="https://www.copyright.gov/1201/2021/ex-parte-communications.html">https://www.copyright.gov/1201/2021/ex-parte-communications.html</a> (last visited Feb. 9, 2023) (identifying ex
parte guidelines for the Eighth Triennial Section 1201 Proceeding,
2021); U.S. Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html">https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html</a> (last visited Feb. 9, 2023) (identifying ex
parte guidelines for the MMA's blanket license implementation); U.S.
Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html">https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html</a> (last visited Feb. 9, 2023) (identifying ex
parte guidelines for MLC and DLC designation rulemaking); U.S.
Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html">https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html</a>
(last visited Feb. 9, 2023) (identifying ex parte guidelines for
proposed amendments to regulations governing cable, satellite, and
DART license reporting practices).
\10\ On occasion, the Office proactively offered rulemaking
participants opportunities to engage in ex parte meetings. For
example, following the Office's ``Statutory Cable, Satellite, and
DART License Reporting Practices'' notice of proposed rulemaking, 82
FR 56926 (Dec. 1, 2017), the Office offered to meet with earlier
rulemaking participants to update the rulemaking record.
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Administrative Conference of the United States Recommendations
Although not every agency has a regulation governing ex parte
communications, the Administrative Conference of the United States
(``ACUS''), an independent federal agency ``whose statutory mission is
to identify ways to improve the procedures by which federal agencies
protect the public interest and determine the rights, privileges, and
obligations of private persons,'' \11\ recommends that each agency that
conducts informal rulemakings should adopt such a policy.\12\ ACUS also
gives direction on ``how agencies can best manage ex parte
communications in the context of informal rulemaking proceedings,''
including how agency personnel should respond to requests to engage in
ex parte communications; what qualifies as an ex parte communication
(i.e., substantive vs. non-substantive inquiries); and the appropriate
procedures to ensure that ex parte communications and their
corresponding letters are made available to the public as part of the
rulemaking docket.\13\ Further, ACUS has made suggestions on the
following subjects: (i) the manner in which ex parte communications
between an agency and informal rulemaking parties should be disclosed
on the rulemaking docket; (ii) the requirements that ex parte meeting
parties file a letter with the Office that summarizes the meetings; and
(iii) how ex parte communications provided post-deadline or containing
new documentary materials are treated by the agency.\14\
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\11\ About ACUS, Administrative Conference of the United States,
<a href="https://www.acus.gov/about-acus">https://www.acus.gov/about-acus</a> (last visited Feb. 9, 2023).
\12\ 79 FR 35988, 35994.
\13\ Id. ACUS previously discussed the benefits of ex parte
communications and opined that agencies should not generally
prohibit such communications. 42 FR 54251, 54253 (Oct. 5, 1977).
\14\ 79 FR 35988, 35995.
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II. Proposed Rule
The Office is proposing new regulations to memorialize its
practices regarding ex parte communications in informal rulemakings, as
well as additional guidance for parties seeking to engage in such
communications. It has used the ACUS's recommendations and other
agencies' comparable rules \15\ as guidance in proposing its regulatory
text.
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\15\ See, e.g., 83 FR 9222 (Mar. 5, 2018) (Surface
Transportation Board final rule); 76 FR 24376 (May 2, 2011) (FCC's
final rule); 74 FR 52795 (Oct. 14, 2009) (Department of Energy's
notice of guidance on ex parte communications).
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In proposing this rule, the Office recognizes that ex parte
communications benefit the agency by informing it of stakeholders'
positions while fostering a complete and transparent rulemaking record.
Ex parte communications may help provide a complete regulatory record
in several ways. First, the communications may ``facilitate a more
candid and potentially interactive dialogue of key issues,'' such as
questions about facts or law.\16\ Parties may also wish to share
sensitive information with the Office through an ex parte meeting
rather than a public comment, which ``may be an indispensable avenue .
. . to obtain the information necessary to develop sound, workable
policies.'' \17\ Additionally, when rulemaking parties submit written
comments, questions may arise that require further correspondence
between the submitter and the Office. As the Office has previously
stated, ex parte communications ``are intended to provide an
opportunity for participants to clarify evidence and/or arguments
[[Page 10250]]
made in prior written submissions and to respond to questions from the
Office on those matters.'' \18\ These communications allow the Office
to supplement, but do not substitute for, the pre-existing regulatory
record and help ensure it has all the information necessary to build
out a complete record.
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\16\ 79 FR 35988, 35994.
\17\ Id.
\18\ U.S. Copyright Office, Copyright Alternative in Small-
Claims Enforcement (CASE) Act of 2020 Rulemakings: Ex Parte
Communications, <a href="https://www.copyright.gov/about/small-claims/related-rulemakings.html">https://www.copyright.gov/about/small-claims/related-rulemakings.html</a> (last visited Feb. 9, 2023); see also,
e.g., U.S. Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/1201/2021/ex-parte-communications.html">https://www.copyright.gov/1201/2021/ex-parte-communications.html</a> (last
visited Feb. 9, 2023) (providing ex parte communications' guidelines
for the Eighth Triennial Section 1201 Proceeding, 2021); U.S.
Copyright Office, Ex Parte Communications, <a href="https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html">https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html</a> (last visited Feb. 9, 2023) (identifying ex
parte guidelines for MLC and DLC designation rulemaking).
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The purpose of this rule is to make information about the Office's
ex parte communication process broadly available to ensure procedural
fairness to the public and rulemaking parties. Rather than following
the past practice of providing formal notice to request ex parte
communications in specific rulemakings, the proposed rule will make
these communications available more generally across its rulemakings.
This will allow the public and rulemaking parties more opportunities to
inform the Office on complex legal, factual, or technical issues that
may arise during a rulemaking proceeding. The rule also contemplates
that ex parte communications will aid in efficient rulemaking
proceedings by allowing rulemaking parties to respond to late-breaking
issues. For these reasons, the Office is proposing and inviting public
comments on the following rule.
Applicability
The proposed rule would apply to both written and oral
communications between the Office and rulemaking parties that deal with
substantive issues in ongoing rulemakings. Allowing both written and
oral communications ensures that all methods of communication are
covered to provide the greatest level of access by rulemaking parties.
The proposed rule, however, does not apply to communications
relating to non-substantive issues (e.g., questions about the Copyright
Office's procedures or a rulemaking's status). Non-substantive issues
would not normally influence an agency's decision-making, inhibit
transparency, or be unfair to other interested parties. If, however, a
communication contains both non-substantive and substantive issues, the
Office will require the parties to submit a summary of the substantive
issues discussed to be included as part of the rulemaking record.
The proposed rule does not apply to communications to the Office on
substantive issues prior to the publication of a Federal Register
notice regarding the same issues. Such communications may be beneficial
in helping the Office ``gather essential information, craft better
regulatory proposals, and promote consensus building among interested
persons.'' \19\ The rule also does not apply to communications made by
Congress, Federal departments and agencies, the Judiciary, or foreign,
state, or local governments.\20\ The Office has occasionally received
such communications in rulemakings, which have been included in the
rulemaking record, even if submitted after the written comment period
has closed.\21\ Finally, the proposed rule does not apply to
communications required by law.
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\19\ 79 FR 35988, 35994 (reflecting ACUS recommendation and
citing Memorandum on Regulatory Reform, 31 Weekly Comp. Pres. Doc.
363 (Mar. 4, 1995), <a href="https://www.govinfo.gov/content/pkg/WCPD-1995-03-13/pdf/WCPD-1995-03-13-Pg363.pdf">https://www.govinfo.gov/content/pkg/WCPD-1995-03-13/pdf/WCPD-1995-03-13-Pg363.pdf</a> (directing agencies to ``review
all . . . administrative ex parte rules and eliminate any that
restrict communication prior to the publication of a proposed rule--
other than rules requiring the simple disclosure of the time, place,
purpose, and participants of meetings'')).
\20\ The Office notes that the ACUS's recommendation did ``does
not address unique issues that may arise in connection with
communications between agencies and members of Congress, foreign
governments, or state and local governments.'' Id.
\21\ See, e.g., U.S. Copyright Office, Section 1201 Rulemaking:
Sixth Triennial Proceeding to Determine Exemptions to the
Prohibition on Circumvention, Recommendation of the Register of
Copyrights 23 (2015), <a href="https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf">https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf</a> (reflecting inclusion of letter
submitted by the California Air Resources Board into the rulemaking
record).
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The Office will not require comments made on its website or social
media pages (e.g., the Office's blog, Twitter page, etc.) to comply
with this proposed rule. While such communications could arguably fall
within the proposed definition of ``ex parte communication,'' the
Office's regulatory team does not monitor these pages for substantive
issues related to ongoing rulemakings. Moreover, these comments will
not be considered as part of the rulemaking record. Parties who wish to
submit comments into the rulemaking record must comply with
instructions included in a proposed rule's Federal Register notice.
Meeting Requests, Format, and Written Summary
The proposed rule sets forth the requirements for parties who wish
to request an ex parte meeting, for how those meetings will be
conducted, and the timing and substance of the written summary that
must be submitted after the meeting for the rulemaking record. Under
the rule, all requests for ex parte meetings normally must be submitted
by email. The Office understands, however, that all parties may not
have the same resources or ability to file a request by email and
allows them to contact the Office for special instructions if
requesting a meeting by email is not feasible.
All meeting requests must be sent to either the Office employee(s)
whose contact information is listed in the Federal Register for the
document that the party wishes to discuss or to the Assistant to the
Office's General Counsel. The Office believes that having requests sent
to these specified individual(s) will dissuade rulemaking parties from
trying to engage in unauthorized ex parte communications through other
Office employees. Moreover, an ex parte meeting request must identify
the names of all proposed attendees, the name of the party on whose
behalf each attendee is appearing, and the rulemaking that will be
discussed in the meeting. Providing this information helps the Office
understand what interests and arguments may be discussed and enables it
to efficiently arrange meeting dates and times.
The proposed rule also provides information on permissible formats
for ex parte meetings. To ensure the greatest possible public access,
the proposed rule allows meetings to be held in-person, telephonically,
virtually (e.g., using Zoom, Microsoft Teams, or similar online
platforms), or through some hybrid combination of these formats.
Allowing participation through various formats provides all rulemaking
parties with the same opportunity to engage in discussions with the
Office and furthers the Office's goal of providing a fair rulemaking
process. While parties' preferences regarding the format will be
considered, the Office will make the final decision regarding the
appropriate format for each ex parte meeting.\22\
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\22\ For example, the Office may pause or restrict the
availability of in-person meetings due to circumstances that effect
public health and safety (e.g., the COVID-19 pandemic) or based on
the availability of Office employees.
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The proposed rule also makes clear that joint ex parte meetings are
[[Page 10251]]
permitted. Rulemaking parties with similar or differing interests may
appear together in meetings with the Office. This can help make the
rulemaking process more efficient and promote more open dialogue on
unresolved issues, for example by providing meeting parties with an
opportunity to reach an agreement or consensus on an outstanding issue.
To ensure impartiality to all rulemaking parties, the proposed rule
limits what information may be presented in ex parte meetings. Similar
to the Office's previous practices and guidelines on ex parte
communications,\23\ the submission of new documentary materials that
are outside of a rulemaking record is not allowed. The Office will not
consider or accept these materials without separate prior written
approval.
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\23\ See, e.g., U.S. Copyright Office, Copyright Alternative in
Small-Claims Enforcement (CASE) Act of 2020 Rulemakings, <a href="https://www.copyright.gov/about/small-claims/related-rulemakings.html">https://www.copyright.gov/about/small-claims/related-rulemakings.html</a> (last
visited Feb. 9, 2023) (ex parte guidelines for CASE Act
rulemakings); U.S. Copyright Office, Ex Parte Communications,
<a href="https://www.copyright.gov/1201/2021/ex-parte-communications.html">https://www.copyright.gov/1201/2021/ex-parte-communications.html</a>
(last visited Feb. 9, 2023) (ex parte guidelines for the Eighth
Triennial Section 1201 Proceeding, 2021); U.S. Copyright Office, Ex
Parte Communications, <a href="https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html">https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html</a> (last visited Feb. 9,
2023) (ex parte guidelines for the MMA's blanket license
implementation); U.S. Copyright Office, Ex Parte Communications,
<a href="https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html">https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html</a> (last visited Feb. 9, 2023) (ex parte guidelines
for MLC and DLC designation rulemaking); U.S. Copyright Office, Ex
Parte Communications, <a href="https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html">https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html</a> (last visited Feb. 9, 2023)
(ex parte guidelines for proposed amendments to regulations
governing cable, satellite, and DART license reporting practices).
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The proposed rule requires that parties participating in ex parte
meetings provide the Office with a written summary of the meeting. The
written summary must be submitted by email to either the Office
employee(s) whose contact information is listed in the corresponding
Federal Register document or the Assistant to the General Counsel. If
email submission is not feasible, the parties may contact the Office
for special instructions regarding the submission process. To ensure
prompt and effective disclosure of ex parte meetings, the proposed rule
requires the summaries to be submitted within two business days of the
meeting (unless otherwise directed or agreed to by the Copyright
Office), to contain the same information that is required for the
meeting request, and to summarize the arguments made by the party
participating in the ex parte communication and the substantive views
it expressed in the meeting.
To provide sufficient transparency to the other rulemaking parties
and the public, the summary must include enough detail that a non-
participating party would understand the substance of the meeting and
the issues raised. The Office will not accept or consider summaries
that merely list the subject(s) discussed or provide a one- or two-
sentence description. If a summary does not comply with these
requirements, or contains inaccuracies (e.g., missing attendees,
information omitted or characterized incorrectly), the Office will
require a corrected letter, which must be submitted within two business
days of the Office's notification. If a party does not provide a
corrected letter, the Office may make a notation on the rulemaking's
designated web page noting or describing the deficiency. The Office
also may, in its discretion, decline to consider the non-compliant
letter as part of the rulemaking record.
The proposed rule allows multiple parties to submit a joint
summary, if desired. It is the responsibility of the party submitting
the summary to ensure that all other meeting parties agree to its
viewpoints and contents. If the multiple parties represent conflicting
viewpoints, the Office will require each party to submit a separate
summary.
These safeguards will bolster the rulemaking process's transparency
and offer fairness to rulemaking parties. The summaries not only
provide the public with information regarding the parties engaging in
ex parte meetings and the topics discussed, but also provide an
adequate, written record of the meetings that the Office may rely on in
its decision-making process. Additionally, the meeting summaries should
impose a minimal burden on parties, as these procedures have been used
without difficulty in past rulemakings.
The proposed rule also permits the Office to impose deadlines on ex
parte communications in any particular rulemaking. These deadlines may
be separate from deadlines to submit written comments. Ex parte
communications, including submission of additional written materials or
ex parte meeting requests, made after an imposed deadline normally will
be denied by the Office. The Office understands, however, that imposing
such restrictions may prevent it from establishing a comprehensive
rulemaking record. For this reason, the rule contains limited
exceptions, including in circumstances where additional comments are
requested by the Office, the comments consist of non-substantive visual
aids, or inclusion of the comments in the rulemaking record would be in
the interests of justice or fairness (e.g., allowing post-deadline
comments to respond to a significant, new, and relevant legal
precedent).
Impermissible Communications and Their Effect
The proposed rule sets forth a process to address attempts to
circumvent the ex parte communications rules. If a party attempts to
engage in an ex parte communication to an Office employee outside of
the process described above, the employee must take certain steps.
First, they must attempt to prevent the communication. If the employee
is unable to prevent the communication, they must advise the person
making the communication that it will not be considered part of the
rulemaking record. Additionally, they must deliver a copy of the
communication, or if it was delivered orally, draft and deliver a
summary of the communication to the Office's General Counsel.
The consequence for parties that engage, or attempt to engage, in
an impermissible ex parte communication will be that the communication
will not be considered as part of the rulemaking record. While other
agencies have chosen to impose harsher sanctions or penalties on
parties that engage in impermissible ex parte communications,\24\ at
this time the
[[Page 10252]]
Office believes that its proposed rule provides enough of a deterrent
and further penalties are not necessary. The Office, however, is open
to considering comments on what types of sanctions, if any, should be
deemed appropriate with respect to different types of ex parte
violations and the agency's authority to impose them.
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\24\ See, e.g., 12 CFR 1081.110(d) (requiring a party that
engages in impermissible ex parte communication in adjudicatory
proceedings before the Consumer Financial Protection Bureau ``to
show cause why the party's claim or interest in the proceeding
should not be dismissed, denied, disregarded, or otherwise adversely
affected on account of such violation'' and allowing Director or
hearing officer ``to the extent not prohibited by law, [to] censure,
suspend, or revoke the privilege to practice before the Bureau of
any person who makes, or solicits the making of, an unauthorized ex
parte communication''); 16 CFR 1025.68(g) (subjecting Consumer
Product Safety Commission rulemaking participants to ``any
appropriate sanction or sanctions, including but not limited to,
exclusion from the proceedings and an adverse ruling on the issue
which is the subject of the prohibited communication''); 24 CFR
180.215(c) (identifying similar sanctions found within the
Department of Housing and Urban Development hearings on civil rights
matters); 40 CFR 304.25(d) (requiring that a party who engages in
impermissible ex parte communication before the Environmental
Protection Agency for certain arbitration procedures to ``show cause
why that party's arguments or claim should not be denied,
disregarded, or otherwise adversely affected on account of such
violation''); 47 CFR 1.1216(d) (identifying that parties that
violate the Federal Communications Commission ex parte communication
guidelines ``may be subject to admonishment, monetary forfeiture, or
to having his or her claim or interest in the proceeding dismissed,
denied, disregarded, or otherwise adversely affected,'' but that
``such alternative or additional sanctions as may be appropriate
also may be imposed''); 49 CFR 1102.2(f) (permitting Surface
Transportation Board to ``censure, suspend, or revoke the privilege
of practicing before the agency of any person who knowingly and
willfully engages in or solicits prohibited ex parte
communication.''); 82 FR 18687, 18690 (Apr. 21, 2017) (``Persons who
fail to adhere to this policy [regarding ex parte presentations in
rulemaking proceedings before Consumer Financial Protection Bureau]
are subject to such sanctions as may be appropriate.'').
---------------------------------------------------------------------------
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 205
Copyright, Legal processes.
Proposed Regulations
For the reasons set forth in the preamble, the U.S. Copyright
Office proposes amending 37 CFR parts 201 and 205 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Amend Sec. 201.1 by adding paragraph (d) to read as follows:
Sec. 201.1 Communication with the Copyright Office.
* * * * *
(d) Requests for an ex parte meeting. The rules governing ex parte
communications in informal rulemakings, including methods to request ex
parte meetings, are found in 37 CFR 205.24.
* * * * *
PART 205--LEGAL PROCESSES
0
3. The authority citation for part 205 continues to read as follows:
Authority: 17 U.S.C. 702.
0
4. Add subpart D, consisting of Sec. 205.24, to read as follows:
Subpart D--Ex Parte Communications
Sec.
205.24 Ex Parte communications in informal rulemakings.
Sec. 205.24 Ex Parte communications in informal rulemakings.
(a) General. The rules governing ex parte communications in
informal rulemakings are intended to provide an opportunity for
rulemaking parties to clarify evidence or arguments made in prior
written submissions, to respond to assertions or requests made by other
parties, or to respond to questions from the Copyright Office on any of
those matters.
(b) Applicability. (1) An ex parte communication is a written or
oral communication regarding the substance of an ongoing rulemaking
between a Copyright Office employee and a member of the public that
must be included in the rulemaking record, as described in this
section.
(2) An ex parte communication does not include the following:
(i) Communications made prior to the publication of a proposed rule
or non-substantive inquiries, such as those regarding the status of a
rulemaking or the Copyright Office's procedures;
(ii) Communications made by members of Congress, Federal
departments and agencies, the Judiciary, foreign governments, or state
and local governments; or
(iii) Communications required by law.
(3) To the extent that communications made on Copyright Office web
pages, including social media pages, would be considered ex parte
communications under paragraph (b)(1) of this section, such
communications are not subject to the rules described in this section
and will not be considered as part of the rulemaking record.
(c) Process. (1) Submitting an ex parte meeting request.
(i) A party may request an in-person, telephonic, virtual, or
hybrid ex parte meeting to discuss aspects of a notification of
inquiry, notice of public hearing, proposed rule, or final rule by
submitting a written request to either--
(A) The Copyright Office employee listed as the contact for further
information in the Federal Register for the notification of inquiry,
notice of public hearing, proposed rule, or final rule that the party
wishes to discuss; or
(B) The Copyright Office's Assistant to the General Counsel. The
current contact information for this employee can be obtained by
contacting the Copyright Office.
(ii) The Copyright Office permits ex parte meetings in informal
rulemakings at its discretion. When ex parte meetings are permitted,
the Office will determine the most appropriate format (e.g., in-person,
telephonic, virtual, or hybrid) for each meeting, but will consider the
requesting party's preferences in making that determination.
(iii) The request should be submitted by email. If email submission
of an ex parte meeting request is not feasible, a party may contact the
Copyright Office for special instructions.
(2) Ex parte meeting request content. An ex parte meeting request
must identify the following information:
(i) The names of all proposed attendees;
(ii) The party or parties on whose behalf each attendee is
appearing; and
(iii) The rulemaking that will be discussed.
(3) Ex parte meeting summary.
(i)(A) Unless otherwise directed by the Copyright Office, within
two business days after an ex parte meeting, attendees must email the
Copyright Office employee identified in paragraph (c)(1)(i)(A) or (B)
of this section a letter detailing the information identified in
paragraph (c)(2) of this section and summarizing the meeting's
discussion. The letter must summarize the substance of the views
expressed and arguments made at the meeting in such a way that a non-
participating party would understand the scope of issues discussed.
Merely listing the subjects discussed or providing a short description
will not be sufficient. If email submission of the letter is not
feasible, an attendee may contact the Copyright Office for special
instructions.
(B) Meeting attendees representing different groups may submit a
joint summary letter, but if the groups represent conflicting
viewpoints, the groups must submit separate summary letters.
(C) If a party's ex parte meeting summary letter does not comply
with paragraph (c)(3)(i) of this section or contains inaccuracies, the
Copyright Office shall notify the ex parte meeting attendee and request
a corrected letter. Unless otherwise directed by the Copyright Office,
the attendee must submit the corrected letter within two business days
of receiving such notification from the Office.
(D) If the ex parte meeting attendee does not provide a corrected
letter under paragraph (c)(3)(i)(C) of this section, the Copyright
Office may add a notation on its website noting or describing the
deficiency. The Copyright Office may also, in its discretion, decline
to consider the noncompliant letter as part of the rulemaking record.
(d) Publication of ex parte communications. Ex parte meeting
letters and comments will be made publicly available on the Copyright
Office's website.
(e) Impermissible communications. (1) General; attempts to
circumvent the ex parte communication process. If a party
[[Page 10253]]
attempts to make an ex parte communication outside of the process
described in paragraph (c) of this section to a Copyright Office
employee, the employee shall attempt to prevent the communication. If
unsuccessful in preventing the communication, the employee shall advise
the person making the communication that it will not be considered by
the Copyright Office as a part of the rulemaking record and shall
deliver either a copy of the communication or, if the communication was
made orally, a summary of the communication to the Copyright Office's
General Counsel and Associate Register of Copyrights.
(2) Other impermissible communications.
(i) Post-deadline communications. The Copyright Office may impose a
deadline to make ex parte meeting requests or to submit written
comments for a rulemaking. Parties normally may not make requests after
that deadline has passed, unless the deadline is removed by the
Copyright Office or until after a final rule is published in the
Federal Register for that rulemaking.
(ii) New documentary material.
(A) The Copyright Office generally will not consider or accept new
documentary materials once the rulemaking record has closed.
(B) The restriction in this paragraph does not apply to any
Copyright Office requests, e.g., requests for supporting legal
authority or additional documentary evidence.
(C) The restriction in this paragraph does not apply to non-
substantive visual aids used in an ex parte meeting that are not
otherwise submitted by a party as part of the rulemaking record. The
Copyright Office, in its discretion, may include a copy of the visual
aid in the rulemaking record.
(f) Effect of impermissible ex parte communication. No prohibited
ex parte communication shall be considered as part of the rulemaking
record, unless it has been introduced into the rulemaking record
through a permitted method. In the interests of justice or fairness,
the Copyright Office may waive this restriction.
Dated: February 14, 2023.
Suzanne Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-03392 Filed 2-16-23; 8:45 am]
BILLING CODE 1410-30-P
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</html>Indexed from Federal Register on February 17, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.