[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 [www.gpo.gov]
[FR Doc No: 2023-03392]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office website 
at https://copyright.gov/rulemaking/ex-parte-communications. 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 [email protected], or by telephone at 
202-707-8350 or Melinda Kern, Attorney-Advisor, by email at 
[email protected], 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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, https://www.copyright.gov/1201/2021/ex-parte-communications.html (last 
visited Feb. 9, 2023) (ex parte guidelines for the Eighth Triennial 
Section 1201 Proceeding, 2021).
    \8\ U.S. Copyright Office, Ex Parte Communications, https://www.copyright.gov/music-modernization/related-rulemakings.html (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, https://www.copyright.gov/about/small-claims/related-rulemakings.html (last 
visited Feb. 9, 2023) (identifying ex parte guidelines for CASE Act 
rulemakings).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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, https://www.copyright.gov/about/small-claims/related-rulemakings.html (last 
visited Feb. 9, 2023); U.S. Copyright Office, Ex Parte 
Communications, https://www.copyright.gov/1201/2021/ex-parte-communications.html (last visited Feb. 9, 2023) (identifying ex 
parte guidelines for the Eighth Triennial Section 1201 Proceeding, 
2021); U.S. Copyright Office, Ex Parte Communications, https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html (last visited Feb. 9, 2023) (identifying ex 
parte guidelines for the MMA's blanket license implementation); U.S. 
Copyright Office, Ex Parte Communications, https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html (last visited Feb. 9, 2023) (identifying ex 
parte guidelines for MLC and DLC designation rulemaking); U.S. 
Copyright Office, Ex Parte Communications, https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html 
(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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \11\ About ACUS, Administrative Conference of the United States, 
https://www.acus.gov/about-acus (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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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, https://www.copyright.gov/about/small-claims/related-rulemakings.html (last visited Feb. 9, 2023); see also, 
e.g., U.S. Copyright Office, Ex Parte Communications, https://www.copyright.gov/1201/2021/ex-parte-communications.html (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, https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html (last visited Feb. 9, 2023) (identifying ex 
parte guidelines for MLC and DLC designation rulemaking).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \19\ 79 FR 35988, 35994 (reflecting ACUS recommendation and 
citing Memorandum on Regulatory Reform, 31 Weekly Comp. Pres. Doc. 
363 (Mar. 4, 1995), https://www.govinfo.gov/content/pkg/WCPD-1995-03-13/pdf/WCPD-1995-03-13-Pg363.pdf (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), https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf (reflecting inclusion of letter 
submitted by the California Air Resources Board into the rulemaking 
record).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \23\ See, e.g., U.S. Copyright Office, Copyright Alternative in 
Small-Claims Enforcement (CASE) Act of 2020 Rulemakings, https://www.copyright.gov/about/small-claims/related-rulemakings.html (last 
visited Feb. 9, 2023) (ex parte guidelines for CASE Act 
rulemakings); U.S. Copyright Office, Ex Parte Communications, 
https://www.copyright.gov/1201/2021/ex-parte-communications.html 
(last visited Feb. 9, 2023) (ex parte guidelines for the Eighth 
Triennial Section 1201 Proceeding, 2021); U.S. Copyright Office, Ex 
Parte Communications, https://www.copyright.gov/rulemaking/mma-implementation/ex-parte-communications.html (last visited Feb. 9, 
2023) (ex parte guidelines for the MMA's blanket license 
implementation); U.S. Copyright Office, Ex Parte Communications, 
https://www.copyright.gov/rulemaking/mma-designations/ex-parte-communications.html (last visited Feb. 9, 2023) (ex parte guidelines 
for MLC and DLC designation rulemaking); U.S. Copyright Office, Ex 
Parte Communications, https://www.copyright.gov/rulemaking/section111/ex-parte-communications.html (last visited Feb. 9, 2023) 
(ex parte guidelines for proposed amendments to regulations 
governing cable, satellite, and DART license reporting practices).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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