Ex Parte Communications
| Citation | 88 FR 54491 |
| Published date | 11 August 2023 |
| Record Number | 2023-17162 |
| Court | Copyright Office,Library Of Congress |
| Section | Rules and Regulations |
Federal Register, Volume 88 Issue 154 (Friday, August 11, 2023)
[Federal Register Volume 88, Number 154 (Friday, August 11, 2023)]
[Rules and Regulations]
[Pages 54491-54495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17162]
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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: Final rule
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SUMMARY: The U.S. Copyright Office is issuing a final rule establishing
procedures governing ex parte communications with the Office. This
final rule adopts regulatory language set forth in the Office's
February 2023 notice of proposed rulemaking with some modifications in
response to public comments. The rule defines ex parte communications,
provides instructions on how to request an ex parte meeting, sets forth
the parties' responsibilities after an ex parte meeting, and explains
how non-compliant communications will be treated.
DATES: Effective September 11, 2023.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected], or Melinda Kern,
Attorney-Advisor, by email at [email protected], or telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
On February 17, 2023, the Office published a notice of proposed
rulemaking (``NPRM'') proposing new regulations governing ex parte
communications with the Office in informal rulemakings.\1\
Specifically, the Office proposed codifying its existing policies for
ex parte communications used in prior rulemakings. To aid in drafting
the NPRM, the Office reviewed other agencies' comparable regulations
and the Administrative Conference of the United States'
recommendations.\2\
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\1\ 88 FR 10248 (Feb. 17, 2023).
\2\ 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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The proposed regulations defined which communications with the
Office should be considered ``ex parte communications,'' as well as
which communications fall outside that definition's scope. The NPRM
also described the process to request an ex parte meeting with the
Office. It provided that, after an ex parte meeting, parties must
submit written summaries of the meeting and proposed a deadline for
doing so. It stated that all meeting summaries will be made publicly
available on the Office's website. Finally, the NPRM described what
communications related to informal rulemaking are impermissible, how
the Office will treat such communications, and the steps that Office
employees must follow if they receive such communications.
The Office sought public input concerning the proposed rule and
received six comments. Commenters generally supported the rule and
noted the value of ex parte communications in the rulemaking
process,\3\ though some suggested various amendments.\4\ Having
reviewed and carefully considered these comments, the Office now issues
a final rule that largely adopts the proposed rule, with some
modifications made in response to the submitted comments.
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\3\ Authors Alliance Comment at 1; Digital Licensee Coordinator
(``DLC'') Comment at 1; NCTA--The internet & Television Association
(``NCTA'') Comment at 1; National Music Publishers' Association
(``NMPA'') Comment at 1; Spotify Comment at 1. The Office also
received a comment from Harvey Jearld Johnson Jr. See Harvey Jearld
Johnson Jr Comment at 1.
\4\ Authors Alliance Comment at 2; DLC Comment at 1; NCTA
Comment at 1; NMPA Comment at 1; Spotify Comment at 1.
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II. Final Rule
A. Definition of Ex Parte Meetings
The NPRM proposed that ``ex parte communications'' include only
communications to the Office on substantive issues concerning an
``ongoing rulemaking.'' \5\ The Office received two comments requesting
clarification on when a communication would fall within the scope of
the ex parte communication rule.\6\ The Digital Licensee Coordinator
(``DLC'') suggested that the Office revise the proposed rule to broaden
its application to communications occurring after the publication of a
notification (or notice) of inquiry (``NOI'').\7\ The DLC noted that
``in their experience, Copyright Office rulemaking often commences not
with an NPRM but with a Notification of Inquiry.'' \8\ Spotify echoed
the DLC's suggestion.\9\
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\5\ 88 FR 10248, 10252 (Feb. 17, 2023).
\6\ DLC Comment at 3; Spotify Comment at 1.
\7\ DLC Comment at 3. An NOI is an official document that
provides or requests information, but is not a proposed or final
rule, i.e., it cannot amend the Code of Federal Regulations. See 1
CFR 5.9(d) (also stating that an NOI cannot be an Executive order or
Presidential proclamation). The Office has used NOIs to announce
studies or public consultations, or to request public input in
advance of issuing an NPRM. See, e.g., 86 FR 72638 (Dec. 22, 2021)
(announcing public consultation on technical measures); 85 FR 34252
(June 3, 2020) (announcing sovereign immunity study); 84 FR 49966
(Sept. 24, 2019) (requesting public comments on implementing title I
of the Music Modernization Act).
\8\ DLC Comment at 3 (citing 88 FR 11398 (Feb. 23, 2023)
(notification of inquiry on Fees for Late Royalty Payments Under the
Music Modernization Act)).
\9\ Spotify Comment at 1.
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The Office agrees with the suggested change and finds that it is
consistent with the goal that the ex parte communications process
``foster[ ] a complete and transparent rulemaking record.'' \10\
Accordingly, the final rule clarifies that ex parte communications
include those communications that occur after the commencement of a
rulemaking, whether the rulemaking process begins with the publication
of
[[Page 54492]]
an NPRM or another Federal Register notice, such as an NOI.
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\10\ 88 FR 10248, 10249 (Feb. 17, 2023).
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B. Time Frame for Submitting Meeting Summaries
In the NPRM, the Office proposed that a party that engages in an ex
parte meeting with the Office normally must submit a summary of the
meeting's discussion within two business days, a timeframe that the
Office has used in previous rulemakings.\11\ Commenters requested that
the Office consider extending the submission timeframe.\12\ The DLC
expressed concern that the proposed timeframe ``imposes more than a
`minimal burden' on participating parties'' and explained that ex parte
meetings ``almost always generate[ ] follow-up questions from the
Office, which require time to investigate, including on occasion
additional time to survey DLC members, and then time to draft a
response.'' \13\ Similarly, the National Music Publishers' Association
(``NMPA'') indicated that the proposed timeframe ``poses a hurdle,
particularly to individual creators'' and small businesses, ``[g]iven
the level of detail required'' and those parties' potential
unfamiliarity with the regulatory process.\14\ Moreover, the NMPA
explained that in its experience, any questions not answered during ex
parte meetings ``should be [answered]'' in the meeting summary, but
noted that the proposed timeframe is ``often insufficient for compiling
the necessary information and drafting a response.'' \15\ Spotify also
recommended that the Office increase the timeframe.\16\
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\11\ See 88 FR 10248, 10249 n.9 (Feb. 17, 2023) (listing several
rulemakings where the Office imposed the two-business day
timeframe).
\12\ DLC Comment at 2-3; NMPA Comment at 1-3; Spotify Comment at
1.
\13\ DLC Comment at 2 (footnote omitted) (quoting 88 FR 10248,
10251 (Feb. 17, 2023)).
\14\ NMPA Comment at 2.
\15\ NMPA Comment at 2.
\16\ Spotify Comment at 1.
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The Office concludes that the requested modification to the
proposed rule is reasonable and supports the overall goal. Accordingly,
the final rule includes a requirement that summaries be submitted
within five business days of the ex parte meeting. This portion of the
rule is designed to provide parties with sufficient time to submit
compliant meeting summaries and ease any potential hardships. The final
rule, however, retains language that provides the Office with
flexibility to set a different deadline for submitting meeting
summaries with respect to a specific rulemaking. The Office believes
that this flexibility is appropriate in certain limited situations,
such as where it needs to enlarge the timeframe to account for
extenuating circumstances, or decrease the timeframe to meet a
statutory deadline or respond quickly to significant developments, such
as new legal precedent or facts, that may impact the Office's reasoning
or the rulemaking's record.\17\
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\17\ See, e.g., 17 U.S.C. 1201(a)(1)(C) (noting that the Office
must conduct a rulemaking regarding exemptions to the prohibition on
the circumvention of technological measures every three years).
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C. Timeframe for Posting Meeting Summaries
While the proposed rule provided that the Office will publish a
party's meeting summary on its website, it did not include a deadline
for the publication.\18\ The NMPA suggested that the Office amend the
proposed rule to impose a timeframe for publishing meeting summaries
that is ``commensurate with the number of days [that] parties have to
file their meeting summary letters.'' \19\
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\18\ 88 FR 10248, 10251 (Feb. 17, 2023).
\19\ NMPA Comment at 3-4 (citing timeframes from the Surface
Transportation Board, 47 CFR 1102.2(g)(4)(vi) (``within five days of
submission'') and the Federal Communications Commission, 47 CFR
1.1206(b)(4) (``at least twice per week'')).
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The Office understands the importance of prompt and effective
disclosure of ex parte meeting summaries, but declines to include such
language in its regulations. In past rulemakings, the Office has
uploaded meeting summaries in a timely manner--in most cases within 24
hours of receiving a compliant summary. The Office will continue to
post meeting summaries as soon as possible, after determining that they
are compliant with its regulations. The Office believes that this
practice sufficiently acknowledges and facilitates prompt and effective
disclosure.
D. Confidential Information
Commenters made additional suggestions with respect to the ability
to provide confidential information in meeting summaries.\20\
Specifically, the DLC requested that the Office ``make clear that the
ex parte meeting summary may exclude disclosure of any confidential or
sensitive information provided to the Office,'' such as financial and
competitive information.\21\ The DLC's comments cited a previous
rulemaking in which the Office allowed public-facing meeting summaries
to exclude confidential information \22\ and a regulation from the
Federal Communications Commission that allows parties to request that
confidential information be withheld from public inspection.\23\
Spotify also recommended that the Office refine the proposed rule
related to confidential information.\24\
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\20\ DLC Comment at 2; Spotify Comment at 1.
\21\ DLC Comment at 2.
\22\ DLC Comment at 2 (citing U.S. Copyright Office, Ex Parte
Communications, https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html (last visited May 11,
2023) (notating meeting summaries where a party ``simultaneously
submitted a version containing confidential information to advise
the Copyright Office of certain confidential information pertaining
to its business'')).
\23\ DLC Comment at 2 (referencing 47 CFR 1.1206(b)(2)(ii)
governing permit-but-disclose proceedings).
\24\ Spotify Comment at 1.
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After considering these comments, the Office proposes no additional
regulatory changes to address submitting confidential information. The
Office understands that allowing parties to exclude confidential
information from publicly posted meeting summaries would allow parties
to be more open to participating in meetings with the Office and more
candid in those meetings. At the same time, there is a strong public
interest in transparent rulemaking proceedings, which the meeting
summaries are intended to promote.
In limited instances in which this balance between these interests
weighs in favor of non-disclosure, the Office may exercise its
discretion to allow parties to exclude confidential information from
publicly posted meeting summaries. The Office may also consider
formalizing its practices pertaining to confidential information in a
future regulation.
E. Sanctions and Penalties
The NPRM addressed the situation where parties engaged, or
attempted to engage, in impermissible substantive communications with
the Office regarding an ongoing rulemaking. Specifically,
communications not in compliance with the ex parte regulations would
not be considered part of the rulemaking record, ``unless [such
information] has been introduced into the rulemaking record through a
permitted method.'' \25\ In response, the Authors Alliance asserted
that the proposed penalty does not provide any ``additional negative
effect'' on parties engaging in a prohibited ex parte communication and
urged the Office to strengthen its enforcement mechanisms for
noncompliance.\26\ Where an impermissible ex parte communication
occurs, the Authors Alliance
[[Page 54493]]
recommended ``sanctions and/or public notification to other parties
about any impermissible ex parte communication'' to ``deter such
behavior.'' \27\
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\25\ 88 FR 10248, 10253 (Feb. 17, 2023).
\26\ Authors Alliance Comment at 2 (suggesting that any
noncompliance should result in a public posting of the noncompliance
on the Office's website).
\27\ Authors Alliance Comment at 2. The Authors Alliance also
suggested that to help ``disincentivize[ ]'' noncompliance with the
proposed rule, the Office should utilize these penalties, which may
involve excluding the impermissible communication from the
rulemaking record, when parties fail to submit any meeting summary.
Authors Alliance Comment at 3.
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At this time, the Office is not adding additional sanctions or
penalty provisions to its final regulations. In light of its current
experience with ex parte meetings, the Office believes that the
proposed penalty (of not including noncompliant ex parte communications
as part of the rulemaking record and not considering the substance of
such communications) provides enough of a deterrent to prevent
noncompliance with the rule. In addition, nothing prevents the Office
from notating the meeting on its website or authoring its own meeting
summary, if it believes that doing so would serve the public interest.
Further, the Office believes it is valuable to evaluate the
effectiveness of the penalty, and stakeholders' adjustments to it,
before considering additional sanctions or penalties. In the future,
the Office may reevaluate the need for additional sanctions or
penalties, such as those suggested by the Authors Alliance or used by
other federal government agencies.\28\
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\28\ 88 FR 10248, 10251 n.24 (Feb. 17, 2023) (listing sanctions
or penalties imposed by other federal government agencies on parties
that engage in impermissible ex parte communications).
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F. Attempting To Initiate Noncompliant Ex Parte Meetings With Other
Employees
The Authors Alliance recognized that some parties may contact
Office staff other than the staff member listed as the contact for
further information in the Federal Register or the Assistant to the
Office's General Counsel--to initiate an ex parte meeting, and
suggested that the Office amend its rule to either ``explicitly
disallow[ ]'' initiating ex parte communications with persons not
listed in the regulations or ``provid[e] a mechanism to manage and
disclose such communications.'' \29\
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\29\ Authors Alliance Comment at 3.
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The Office understands that additional clarity is called for on
this subject. The final rule clarifies the process for managing
requests for an ex parte meeting, but declines to incorporate the
Authors Alliance's other suggestions. The rule addresses instances
where a party requests an ex parte meeting through an Office employee
not listed as a contact in the Federal Register. In these
circumstances, the Office employee will either direct the party to
contact the appropriate contact person(s) or forward the request to the
contact person(s). Generally, centralizing ex parte meeting requests
and meeting summaries helps guard against attempts to engage in
unauthorized ex parte communications.\30\ It also has the practical
benefit of allowing the appropriate Office employee(s) to evaluate the
request and coordinate meeting logistics.
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\30\ 88 FR 10248, 10250 (Feb. 17, 2023).
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G. Other Comments
Commenters made additional suggestions that would expand the scope
of the proposed rule. These expansions would permit parties to submit
``ex parte letters,'' e.g., written comments, without first engaging in
an ex parte meeting with the Office,\31\ allow parties to submit
documentary materials during ex parte meetings without the Office's
prior written approval,\32\ or expand the rule to apply to additional
communications with the Office with respect to its other
responsibilities, including policy studies and amicus briefs.\33\ At
this time, the Office is not adopting these suggestions.
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\31\ NCTA Comment at 1, 3.
\32\ NCTA Comment at 2.
\33\ Authors Alliance Comment at 3-4.
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The Office declines to permit parties to file ``ex parte letters''
without first meeting with the Office. Allowing parties to submit
written comments without requiring a meeting would risk allowing the ex
parte process to supplant, not supplement, the ordinary comment
submission process.
The Office also declines to allow parties to submit documentary
materials during ex parte meetings without the Office's prior written
approval.\34\ As stated in the NPRM, ex parte communications are
intended to provide an opportunity for participants to clarify evidence
or arguments made in prior written submissions and to respond to the
Office's questions on those matters, to enhance transparency, and to
create a comprehensive rulemaking record.\35\ The introduction of
documentary evidence through ex parte meetings could introduce
unnecessary inefficiencies or delays and deprive rulemaking parties of
an opportunity to respond to new documentary evidence.
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\34\ NCTA Comment at 2.
\35\ 88 FR 10248, 10249-50, 10252 (Feb. 17, 2023).
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Further, the Office declines to extend the proposed rule to
communications related to the Office's other work, including policy
studies and amicus briefs.\36\ This rulemaking only addresses ex parte
meetings in informal rulemakings, i.e., where the Office is acting as a
regulatory decision-maker. This is consistent with how other agencies
have addressed ex parte communications to ensure a complete and
transparent rulemaking record.
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\36\ Authors Alliance Comment at 3-4.
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Finally, at NCTA--the internet & Television Association's
(``NCTA'') request, the Office is making a minor edit to clarify that
any member of the public can request an ex parte meeting. This
opportunity is not limited to individuals or entities who file comments
in the proceeding, e.g., ``rulemaking parties.'' \37\ The Office notes
that this language is solely a clarification, and not a change to its
existing practice.
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\37\ NCTA Comment at 3.
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List of Subjects
37 CFR Part 201
Administrative practice and procedure, Cable television, Copyright,
Recordings, Satellites.
37 CFR Part 205
Copyright, Courts.
Final Regulations
For the reasons set forth in the preamble, the Copyright Office
amends 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.
[[Page 54494]]
205.24 Ex Parte communications in informal rulemakings.
Sec. 205.24 Ex Parte communications in informal rulemakings.
(a) General. The rules in this section governing ex parte
communications in informal rulemakings are intended to provide an
opportunity for 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 Federal
Register document commencing a rulemaking proceeding;
(ii) Non-substantive inquiries, such as those regarding the status
of a rulemaking or the Copyright Office's procedures;
(iii) Communications made by members of Congress, Federal
departments and agencies, the Judiciary, foreign governments, or state
and local governments; or
(iv) 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 an ongoing rulemaking 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 ongoing rulemaking 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) If a party makes an ex parte meeting request to a Copyright
Office employee not identified in paragraph (c)(1)(i)(A) or (B) of this
section, that employee will either direct the party making the request
to contact the appropriate employee(s) or forward the party's request
to the appropriate employee(s).
(iii) 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.
(iv) 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 five 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 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 (e)(2)(ii) 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 (e)(2)(ii) 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 communications. No prohibited
ex parte communication shall be considered as
[[Page 54495]]
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: July 24, 2023.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023-17162 Filed 8-10-23; 8:45 am]
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