37 CFR 205.24 — Legal Processes
Current through: 2024-07-01

Ex Parte communications in informal rulemakings.

§ 205.24 Ex Parte communications in informal rulemakings. (a) General. The rules in this section governing ex parte communications in informal rulemakings are intended to provide an opportunity for parties to clarify evidence or arguments made in prior written submissions, to respond to assertions or requests made by other parties, or to respond to questions from the Copyright Office on any of those matters. (b) Applicability. (1) An ex parte communication is a written or oral communication regarding the substance of an ongoing rulemaking between a Copyright Office employee and a member of the public that must be included in the rulemaking record, as described in this section. (2) An ex parte communication does not include the following: (i) Communications made prior to the publication of a Federal Register document commencing a rulemaking proceeding; (ii) Non-substantive inquiries, such as those regarding the status of a rulemaking or the Copyright Office's procedures; (iii) Communications made by members of Congress, Federal departments and agencies, the Judiciary, foreign governments, or state and local governments; or (iv) Communications required by law. (3) To the extent that communications made on Copyright Office web pages, including social media pages, would be considered ex parte communications under paragraph (b)(1) of this section, such communications are not subject to the rules described in this section and will not be considered as part of the rulemaking record. (c) Process —(1) Submitting an ex parte meeting request. (i) A party may request an in-person, telephonic, virtual, or hybrid ex parte meeting to discuss aspects of an ongoing rulemaking by submitting a written request to either— (A) The Copyright Office employee listed as the contact for further information in the Federal Register for the ongoing rulemaking that the party wishes to discuss; or (B) The Copyright Office's Assistant to the General Counsel. The current contact information for this employee can be obtained by contacting the Copyright Office. (ii) If a party makes an ex parte meeting request to a Copyright Office employee not identified in paragraph (c)(1)(i)(A) or (B) of this section, that employee will either direct the party making the request to contact the appropriate employee(s) or forward the party's request to the appropriate employee(s). (iii) The Copyright Office permits ex parte meetings in informal rulemakings at its discretion. When ex parte meetings are permitted, the Office will determine the most appropriate format ( e.g., in-person, telephonic, virtual, or hybrid) for each meeting, but will consider the requesting party's preferences in making that determination. (iv) The request should be submitted by email. If email submission of an ex parte meeting request is not feasible, a party may contact the Copyright Office for special instructions. (2) Ex parte meeting request content. An ex parte meeting request must identify the following information: (i) The names of all proposed attendees; (ii) The party or parties on whose behalf each attendee is appearing; and (iii) The rulemaking that will be discussed. (3) Ex parte meeting summary. (i)(A) Unless otherwise directed by the Copyright Office, within five business days after an ex parte meeting, attendees must email the Copyright Office employee identified in paragraph (c)(1)(i)(A) or (B) of this section a letter detailing the information identified in paragraph (c)(2) of this section and summarizing the meeting's discussion. The letter must summarize the substance of the views expressed and arguments made at the meeting in such a way that a non-participating party would understand the scope of issues discussed. Merely listing the subjects discussed or providing a short description will not be sufficient. If email submission of the letter is not feasible, an attendee may contact the Copyright Office for special instructions. (B) Meeting attendees representing different groups may submit a joint summary letter, but if the groups represent conflicting viewpoints, the groups must submit separate summary letters. (C) If a party's ex parte meeting summary letter does not comply with paragraph (c)(3)(i) of this section or contains inaccuracies, the Copyright Office shall notify the ex parte meeting attendee and request a corrected letter. Unless otherwise directed by the Copyright Office, the attendee must submit the corrected letter within two business days of receiving such notification from the Office. (D) If the ex parte meeting attendee does not provide a corrected letter under paragraph (c)(3)(i)(C) of this section, the Copyright Office may add a notation on its website noting or describing the deficiency. The Copyright Office may also, in its discretion, decline to consider the noncompliant letter as part of the rulemaking record. (d) Publication of ex parte communications. Ex parte meeting letters and comments will be made publicly available on the Copyright Office's website. (e) Impermissible communications —(1) General; attempts to circumvent the ex parte communication process. If a party attempts to make an ex parte communication outside of the process described in paragraph (c) of this section to a Copyright Office employee, the employee shall attempt to prevent the communication. If unsuccessful in preventing the communication, the employee shall advise the person making the communication that it will not be considered by the Copyright Office as a part of the rulemaking record and shall deliver either a copy of the communication or, if the communication was made orally, a summary of the communication to the Copyright Office's General Counsel and Associate Register of Copyrights. (2) Other impermissible communications —(i) Post-deadline communications. The Copyright Office may impose a deadline to make ex parte meeting requests or to submit written comments for a rulemaking. Parties normally may not make requests after that deadline has passed, unless the deadline is removed by the Copyright Office or until after a final rule is published in the Federal Register for that rulemaking. (ii) New documentary material. (A) The Copyright Office generally will not consider or accept new documentary materials once the rulemaking record has closed. (B) The restriction in this paragraph (e)(2)(ii) does not apply to any Copyright Office requests, e.g., requests for supporting legal authority or additional documentary evidence. (C) The restriction in this paragraph (e)(2)(ii) does not apply to non-substantive visual aids used in an ex parte meeting that are not otherwise submitted by a party as part of the rulemaking record. The Copyright Office, in its discretion, may include a copy of the visual aid in the rulemaking record. (f) Effect of impermissible ex parte communications. No prohibited ex parte communication shall be considered as 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.