Ex Parte Communications, 10248-10253 [2023-03392]
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Federal Register / Vol. 88, No. 33 / Friday, February 17, 2023 / Proposed Rules
docket number for this rulemaking,
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation.
Submitting comments. We encourage
you to submit comments through the
Federal Decision Making Portal at
https://www.regulations.gov. To do so,
go to https://www.regulations.gov, type
USCG–2023–0081 in the search box and
click ‘‘Search.’’ Next, look for this
document in the Search Results column,
and click on it. Then click on the
Comment option. If you cannot submit
your material by using https://
www.regulations.gov, call or email the
person in the FOR FURTHER INFORMATION
CONTACT section of this proposed rule
for alternate instructions.
Viewing material in docket. To view
documents mentioned in this proposed
rule as being available in the docket,
find the docket as described in the
previous paragraph, and then select
‘‘Supporting & Related Material’’ in the
Document Type column. Public
comments will also be placed in our
online docket and can be viewed by
following instructions on the https://
www.regulations.gov Frequently Asked
Questions web page. We review all
comments received, but we will only
post comments that address the topic of
the proposed rule. We may choose not
to post off-topic, inappropriate, or
duplicate comments that we receive.
Personal information. We accept
anonymous comments. Comments we
post to https://www.regulations.gov will
include any personal information you
have provided. For more about privacy
and submissions to the docket in
response to this document, see DHS’s
eRulemaking System of Records notice
(85 FR 14226, March 11, 2020).
List of Subjects in 33 CFR Part 165
Harbors, Marine Safety, Navigation
(water), Reporting and Recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard is proposing
to amend 33 CFR part 165 as follows:
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PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 46 U.S.C. 70034, 70051, 70124;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 00170.1, Revision No. 01.3.
2. Add § 165.T07–0081 to read as
follows:
■
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§ 165.T07–0081 Safety Zone: Tall Ships
America; Tampa Bay, St Petersburg, FL.
The Coast Guard is establishing a
temporary moving safety zone on the
waters of Tampa Bay, around a Tall
ships America Parade of sail in St
Petersburg, Florida on March 30, 2023.
The safety zone will extend 100 yards
from the beam of the ships as they
transit from the muster point in
approximate position 27°43.54′ N
082°36.38′ W to the moorings at Port St
Pete, St Petersburg, FL in approximate
position 27°45.34′ N 082°37.15′ W. The
safety Zone is necessary to protect the
public, wooden sailing vessels and their
crews from the hazards associated with
transiting the area. Persons and vessels
are prohibited from entering, transiting
through, anchoring in, or remaining
within the safety zone unless authorized
by the Captain of the Port St. Petersburg
or a designated representative.
Dated: February 14, 2023.
Micheal P. Kahle,
Captain, U.S. Coast Guard, Captain of the
Port Saint Petersburg.
[FR Doc. 2023–03422 Filed 2–16–23; 8:45 am]
BILLING CODE 9110–04–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201 and 205
[Docket No. 2023–1]
Ex Parte Communications
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of proposed rulemaking.
AGENCY:
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.
SUMMARY:
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Specific instructions for submitting
comments are available on the
Copyright Office website at https://
copyright.gov/rulemaking/ex-partecommunications. 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 meft@
copyright.gov, or by telephone at 202–
707–8350 or Melinda Kern, AttorneyAdvisor, by email at mkern@
copyright.gov, 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.
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
1 See
5 U.S.C. 553; 17 U.S.C. 701(e).
5 U.S.C. 556, 557 (discussing procedural
requirements in formal rulemakings).
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).
2 See
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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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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
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
6 79 FR 35988, 35993 (June 25, 2014) (reflecting
Administrative Conference of the United States
Recommendation 2014–4, ‘‘Ex Parte’’
Communications in Informal Rulemaking).
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-partecommunications.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).
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
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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
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.,
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/relatedrulemakings.html (last visited Feb. 9, 2023); U.S.
Copyright Office, Ex Parte Communications,
https://www.copyright.gov/1201/2021/ex-partecommunications.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/mmaimplementation/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-partecommunications.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-partecommunications.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.
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.
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10249
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 postdeadline or containing new
documentary materials are treated by
the agency.14
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.
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
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.
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).
16 79 FR 35988, 35994.
17 Id.
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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.
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 latebreaking issues. For these reasons, the
Office is proposing and inviting public
comments on the following rule.
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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). Nonsubstantive 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 nonsubstantive and substantive issues, the
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/relatedrulemakings.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-partecommunications.html (last visited Feb. 9, 2023)
(identifying ex parte guidelines for MLC and DLC
designation rulemaking).
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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.
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.
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-1995-03-13Pg363.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).
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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
The proposed rule also makes clear
that joint ex parte meetings are
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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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.
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
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/relatedrulemakings.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-partecommunications.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-partecommunications.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-partecommunications.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-partecommunications.html (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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15:48 Feb 16, 2023
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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 twosentence 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 nonsubstantive visual aids, or inclusion of
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10251
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
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
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Federal Register / Vol. 88, No. 33 / Friday, February 17, 2023 / Proposed Rules
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.
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
1. The authority citation for part 201
continues to read as follows:
■
Authority: 17 U.S.C. 702.
2. Amend § 201.1 by adding paragraph
(d) to read as follows:
■
§ 201.1
Office.
Communication with the Copyright
*
*
*
*
*
(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
3. The authority citation for part 205
continues to read as follows:
■
Authority: 17 U.S.C. 702.
4. Add subpart D, consisting of
§ 205.24, to read as follows:
■
Subpart D—Ex Parte Communications
Sec.
205.24 Ex Parte communications in
informal rulemakings.
§ 205.24 Ex Parte communications in
informal rulemakings.
lotter on DSK11XQN23PROD with PROPOSALS1
(a) General. The rules governing ex
parte communications in informal
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.’’).
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15:48 Feb 16, 2023
Jkt 259001
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 nonsubstantive 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
PO 00000
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Fmt 4702
Sfmt 4702
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
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Federal Register / Vol. 88, No. 33 / Friday, February 17, 2023 / Proposed Rules
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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15:48 Feb 16, 2023
Jkt 259001
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2021–0525; FRL–10583–
01–Region 6]
Air Plan Approval; Texas; Oil and
Natural Gas Reasonably Available
Control Technology in the Dallas-Fort
Worth and Houston-GalvestonBrazoria Ozone Nonattainment Areas
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Pursuant to the Federal Clean
Air Act (CAA or the Act), the
Environmental Protection Agency (EPA)
is proposing to approve the July 20,
2021 revisions to the Texas State
Implementation Plan (SIP) concerning
Reasonably Available Control
Technology (RACT) requirements
covered by the 2016 Oil and Natural Gas
Control Techniques Guidelines (CTG or
CTGs) for Dallas-Fort Worth (DFW) and
the Houston-Galveston-Brazoria (HGB)
nonattainment areas (NAAs) for the
2008 8-hour ozone National Air Quality
Ambient Air Quality Standards
(NAAQS). The DFW area consists of
Collin, Dallas, Denton, Ellis, Johnson,
Kaufman, Parker, Rockwall, Tarrant,
and Wise Counties. The HGB area
consists of Brazoria, Chambers, Fort
Bend, Galveston, Harris, Liberty,
Montgomery, and Waller Counties.
These areas were both classified as
Serious nonattainment for the 2008
ozone NAAQS on August 23, 2019.
These revisions create new RACT rules
for oil and gas production and natural
gas processing in the DFW and HGB
NAAs and make non-substantive
changes to reflect the rule applicability
for the types of equipment currently
required to comply with existing rule
requirements but that would be subject
to the new requirements upon the
compliance date.
DATES: Written comments must be
received on or before March 20, 2023.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2021–0525 at https://
www.regulations.gov or via email to
Ahuja.Anupa@epa.gov. Follow the
online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. The EPA may publish
any comment received to its public
docket. Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
SUMMARY:
PO 00000
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Fmt 4702
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10253
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact Anupa Ahuja, ahuja.anupa@
epa.gov. For the full EPA public
comment policy, information about CBI,
and general guidance on making
effective comments, please visit https://
www.epa.gov/dockets/commenting-epadockets.
Docket: The index to the docket for
this action is available electronically at
www.regulations.gov. While all
documents in the docket are listed in
the index, some information may not be
publicly available due to docket file size
restrictions or content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT:
Anupa Ahuja, EPA Region 6 Office,
Infrastructure & Ozone Section, 214–
665–2701, ahuja.anupa@epa.gov. Out of
an abundance of caution for members of
the public and our staff, the EPA Region
6 office may be closed to the public to
reduce the risk of transmitting COVID–
19. We encourage the public to submit
comments via https://
www.regulations.gov. Please call or
email the contact listed above if you
need alternative access to material
indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION:
Throughout this document wherever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
the EPA.
I. Background
Ground-level ozone, or smog, which
harms human health and the
environment, is formed when volatile
organic compounds (VOCs) and
nitrogen oxides (NOX) interact in the
presence of sunlight. Sections 182(b)(2)
and (f) of the CAA require that SIPs for
ozone nonattainment areas classified as
Moderate or above include
implementation of RACT for any source
covered by a Control Techniques
Guidelines (CTG) document issued by
the EPA, and for any major source of
VOC or NOX located in the
nonattainment area. It is worth noting
that for some CTG categories, RACT is
applicable to minor or area sources. The
EPA has defined RACT as the lowest
emissions limitation that a particular
source is capable of meeting by the
application of control technology that is
reasonably available, considering
E:\FR\FM\17FEP1.SGM
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]]>Agencies
[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.
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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, 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.
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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.
---------------------------------------------------------------------------
\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.
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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.'').
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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
