[Federal Register Volume 67, Number 231 (Monday, December 2, 2002)]
[Rules and Regulations]
[Pages 71477-71479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30445]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 259

[Docket No. 2002-9 CARP]


Filing of Claims for DART Royalty Funds

AGENCY: Copyright Office, Library of Congress.

ACTION: Waiver of regulation.

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SUMMARY: Due to continuing delays in the receipt of mail, the Copyright 
Office of the Library of Congress is announcing alternative methods for 
the filing of claims to the DART royalty funds for the year 2002. In 
order to ensure that their claims are timely received, claimants are 
encouraged to file their DART claims online or by fax, utilizing the 
special procedures described in this document.

EFFECTIVE DATE: December 2, 2002.

ADDRESSES: If hand delivered, an original and two copies of each claim 
should be brought to: Office of the Copyright General Counsel, James 
Madison Memorial Building, Room 403, First and Independence Avenue, 
SE., Washington, DC 20540. See SUPPLEMENTARY INFORMATION for 
information about on-line electronic filing through the Copyright 
Office website. Submissions by facsimile should be sent to (202) 252-
3423. If sent by mail, an original and two copies of each claim should 
be addressed to: Copyright Arbitration Royalty Panel (CARP), P.O. Box 
70977, Southwest Station, Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: William J. Roberts, Jr., Senior 
Attorney, or Susan Grimes, CARP Specialist, P.O. Box 70977, Southwest 
Station, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: 
(202) 252-3423.

SUPPLEMENTARY INFORMATION:

Background

    Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory 
obligation on manufacturers and importers of digital audio recording 
devices and media (``DART'') who distribute the products in the United 
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003. 
Distribution of these royalty fees may be made to any interested 
copyright owner who has filed a claim and (1) whose sound recording was 
distributed in the form of digital musical recordings or analog musical 
recordings and (2) whose musical work was distributed in the form of 
digital musical recordings or

[[Page 71478]]

analog musical recordings or disseminated to the public in 
transmissions. 17 U.S.C. 1006.
    Section 1007 provides that claims to these royalty fees must be 
filed ``[d]uring the first 2 months of each calendar year'' with the 
Librarian of Congress ``in such form and manner as the Librarian of 
Congress shall prescribe by regulation.'' 17 U.S.C. 1007. Part 259 of 
title 37 of the Code of Federal Regulations sets forth the procedures 
for the filing of claims to the DART royalty funds. Section 259.5 
states that in order for a claim to be considered timely filed with the 
Copyright Office, the claims either have to be hand delivered to the 
Office by the last day in February \1\ or if sent by mail, received by 
the Office by the last day in February or bear a January or February 
United States Postal Service postmark. 37 CFR 259.5(a). Claims received 
after the last day in February will be accepted as timely filed only 
upon proof that the claim was placed within the United States Postal 
Service during the months of January or February. 37 CFR 259.5(e). A 
January or February postmark of the United States Postal Service on the 
envelope containing the claim or, if sent by certified mail return 
receipt requested, on the certified mail receipt constitutes sufficient 
proof that the claim was timely filed.\2\ 37 CFR 259.5(e). The 
regulations do not provide for the filing of DART claims by alternative 
methods such as on-line submission or facsimile transmission.
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    \1\ In those years where the last day of February falls on a 
Saturday, Sunday, a holiday, or other nonbusiness day within the 
District of Columbia or the Federal Government, claims must be 
received by the first business day in March. 37 CFR 259.5(b).
    \2\ Claims dated only with a business meter that are received 
after the last day in February will not be accepted as having been 
timely filed. 37 CFR 259.5(c).
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    Last year, due to severe disruptions in the delivery of mail to the 
Office caused by threat of possible anthrax contamination, the 
Copyright Office waived the regulations requiring that claims bear 
``the original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and prohibiting the 
filing of by ``facsimile transmission,'' 37 CFR 259.5(d), for the 
filing of claims to the DART royalty funds for the year 2001. See 67 FR 
5213 (February 5, 2002). While mail delivery to the Office has now 
resumed, incoming mail continues to be irradiated and diverted to an 
off-site location for treatment, resulting in delays in its delivery. 
Consequently, in light of these continuing delays, the Office once 
again is waiving Sec. Sec.  259.3(b) and 259.5(d) and allowing the on-
line and facsimile submission of DART claims to the 2002 royalty funds. 
The Office has decided not to allow the filing of claims by electronic 
mail because lists of joint claimants can now be filed through the 
Office's website. The alternative methods set forth in this Notice 
apply only to the filing of DART claims for the 2002 royalties which 
are due by February 28, 2003, and in no way apply to other filings with 
the Office.
    This Notice covers only the means by which claims may be accepted 
as timely filed; all other filing requirements, such as the content of 
claims, remain unchanged, except as noted herein. See 37 CFR part 259.

Acceptable Methods of Filing DART Claims for the Year 2002

    Claims to the 2002 DART royalty funds may be submitted as follows:

a. Hand Delivery

    In order to best ensure the timely receipt by the Copyright Office 
of their DART claims, the Office strongly encourages claimants to 
personally deliver their claims by 5 p.m. E.S.T. on February 28, 2003, 
to the Office of the Copyright General Counsel, James Madison Memorial 
Building, Room 403, First and Independence Avenue, SE., Washington, DC. 
Private carriers should not be used for such delivery, as packages 
brought in by private carriers are subject to treatment at the off-site 
facility before being delivered to the Office and will be deemed 
untimely and rejected unless the treated package is received by the 
Office of the Copyright General Counsel by 5 p.m. E.S.T. on February 
28, 2003. Thus, claims should be hand delivered by the claimant or a 
representative of the claimant (i.e., the claimant's attorney or a 
member of the attorney's staff).
    Claimants hand delivering their claims should note that they must 
follow all provisions set forth in 37 CFR part 259.

b. On-line Submission

    The Office has devised on-line electronic forms for filing both 
single and joint DART claims. Claimants will be able to access and 
complete the forms via the Copyright Office website and may submit the 
forms electronically as provided in the instructions accompanying the 
forms. DART forms will be posted on the Office Web site at http://www.copyright.gov/carp/dart/index.html. Claimants filing a joint claim 
may list each of their joint claimants directly on the Office's on-line 
joint claim form or may submit the list of joint claimants as a file 
attachment to the submission page. Lists of joint claimants sent as an 
attachment must be in a single file in either Adobe Portable Document 
(``PDF'') format, in Microsoft Word Version 2000 or earlier, in 
WordPerfect 9 or earlier, or in ASCII text. There will be a browse 
button on the form that will allow claimants to attach the file 
containing the list of joint claimants and then to submit the completed 
form to the Office. The attachment must contain only the list of names 
of joint claimants. Joint claims with attachments containing 
information other than the joint claimants' names will be rejected.
    The DART forms will be available for use during the months of 
January and February. It is critically important to follow the 
instructions in completing the forms before submitting them to the 
Office. Claims submitted on-line using forms or formats other than 
those specified in this Notice will not be accepted by the Office. 
Claims filed on-line must be received by the Office no later than 11:59 
p.m. E.S.T. on February 28, 2003. Specifically, the completed 
electronic forms must be received in the Office's server by that time. 
Any claim received after that time will be considered as untimely 
filed. Claimants will receive an electronic mail message in response 
stating that the Office has received their submission. Therefore, 
claimants utilizing this filing option are required to provide an e-
mail address. Claimants submitting their claims on-line are strongly 
encouraged to send their claim no later than February 27, 2003, in 
order to better ensure timely receipt by the Office.
    When filing claims on-line, all provisions set forth in 37 CFR part 
259 apply except Sec.  259.3(b), which requires the original signature 
of the claimant or of the claimant's duly authorized representative on 
the claim. The Office is waiving this provision for this filing period 
because at this time the Office is not equipped to receive and process 
electronic signatures.

c. Facsimile

    Claims may be filed with the Office via facsimile transmission and 
such filings must be sent to (202) 252-3423. Claims filed in this 
manner must be received in the Office no later than 5 p.m. E.S.T. on 
February 28, 2003. The fax machine will be disconnected at that time. 
Claims sent to any other fax number will not be accepted by the Office.
    When filing claims via facsimile transmission, claimants must 
follow all provisions set forth in 37 CFR part 259 with the exception 
of Sec.  259.5(d), which prohibits the filing of claims by

[[Page 71479]]

facsimile transmission. The Office is waiving this provision at this 
time in order to assist claimants in the timely filing of their claims.

d. By Mail

    Section 259.5(a)(2) directs claimants filing their claims by mail 
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box 
70977, Southwest Station, Washington, DC 20024. Claimants electing to 
send their claims by mail are encouraged to send their claims by 
certified mail return receipt requested, to have the certified mail 
receipt (PS Form 3800) stamped by the United States Postal Service, and 
to retain the certified mail receipt in order to provide proof of 
timely filing, should the claim reach the Office after the last day in 
February. In the event there is a question as to whether the claim was 
deposited with the United States Postal Service during the months of 
January or February, the claimant must produce the certified mail 
receipt (PS Form 3800) which bears a United States Postal Service 
postmark, indicating an appropriate date.
    Because of delays in mail delivery, claimants are urged not to use 
the mail as a means of filing their claims to the 2002 DART royalty 
funds. While the Office is not prohibiting the filing of claims by 
mail, those who do so assume the risk that their claim will not reach 
the Office in a timely manner, and/or that the mail, when received by 
the Office, will be damaged. Claims sent by mail should be addressed in 
accordance with Sec.  259.5(a)(2), and the Office again strongly 
encourages the claimant to send the claim by certified mail return 
receipt requested, to have the certified mail receipt (PS Form 3800) 
stamped by the United States Postal Service, and to retain the 
certified mail receipt, as it constitutes the only acceptable proof of 
timely filing of the claim. Claims dated only with a business meter 
that are received by the Office after February 28, 2003, will be 
rejected as being untimely filed.
    When filing claims by this method, claimants must follow all 
provisions set forth in 37 CFR part 259.

Waiver of Regulation

    The regulations governing the filing of DART claims require ``the 
original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and do not allow 
claims to be filed by ``facsimile transmission,'' 37 CFR 259.5(d). This 
document, however, waives these provisions as set forth herein solely 
for the purpose of filing claims to the 2002 DART royalties. The Office 
is not, and indeed cannot, waive the statutory deadline for the filing 
of DART claims. See, United States v. Locke, 471 U.S. 84, 101 (1985). 
Thus, claimants are still required to file their claims by February 28, 
2003.
    Waiver of an agency's rules is ``appropriate only if special 
circumstances warrant a deviation from the general rule and such 
deviation will serve the public interest.'' Northeast Cellular 
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see 
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is 
reluctant to waive its regulations. However, the continuing delays in 
the delivery of the mail constitutes a special circumstance which has 
forced the Office to deviate from its usual mail processing procedures. 
Thus, given the delays in mail delivery, the Office believes that the 
public interest will best be served by waiving, for this filing period, 
the requirement that DART claims bear the original signature of the 
claimant or of a duly authorized representative of the claimant, when, 
and only when, such claim is filed on-line through the Office's 
website. See 67 FR at 5214.
    The Office cannot waive the statutory deadline set forth in 17 
U.S.C. 1007 and accept claims filed after February 28, 2003. See Locke, 
supra. Therefore, in order to serve the public interest the Office is 
providing claimants with alternative methods of filing, in addition to 
those set forth in the regulations, in order to assist them in timely 
filing their claims. By allowing claims to be filed on-line and by 
facsimile transmission, the Office is affording to all claimants an 
equal opportunity to meet the statutory deadline.

    Dated: November 26, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-30445 Filed 11-29-02; 8:45 am]
BILLING CODE 1410-31-P