[Federal Register: February 5, 2002 (Volume 67, Number 24)]
[Rules and Regulations]               
[Page 5213-5215]
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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 259

[Docket No. 2002-3 CARP]

 
Filing of Claims for DART Royalty Funds

AGENCY: Copyright Office, Library of Congress.

ACTION: Waiver of regulation.

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SUMMARY: Due to a serious disruption in the delivery of mail, the 
Copyright Office of the Library of Congress is announcing alternative 
methods for the filing of claims to the DART royalty funds for the year 
2001. In order to ensure that their claims are timely received, 
claimants are encouraged to file their DART claims electronically or by 
fax, utilizing the special procedures described in this Notice.

EFFECTIVE DATE: February 5, 2002.

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

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Gina Giuffreda, CARP Specialist, P.O. Box 70977, Southwest Station, 
Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 252-
3423.

SUPPLEMENTARY INFORMATION:

Background

    Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory 
obligation on manufacturers and importers of digital audio recording 
devices and media (``DART'') who distribute the products in the United 
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003. 
Distribution of these royalty fees may be made to any interested 
copyright owner who has filed a claim and (1) whose sound recording was 
distributed in the form of digital musical recordings or analog musical 
recordings and (2) whose musical work was distributed in the form of 
digital musical recordings or analog musical recordings or disseminated 
to the public in transmissions. 17 U.S.C. 1006.
    Section 1007 provides that claims to these royalty fees must be 
filed ``[d]uring the first 2 months of each calendar year'' with the 
Librarian of Congress ``in such form and manner as the Librarian of 
Congress shall prescribe by regulation.'' 17 U.S.C. 1007. Part 259 of 
title 37 of the Code of Federal Regulations sets forth the procedures 
for the filing of claims to the DART royalty funds. Section 259.5 
states that in order for a claim to be considered timely filed with the 
Copyright Office, the claims either have to be hand delivered to the 
Office by the last day in February \1\ or if sent by mail, received by 
the Office by the last day in February or bear a January or February 
United States Postal Service postmark. 37 CFR 259.5(a). Claims received 
after the last day in February will be accepted as timely filed only 
upon proof that the claim was placed within the United States Postal 
Service during the months of January or February. 37 CFR 259.5(e). A 
January or February postmark of the United States Postal Service on the 
envelope containing the claim or, if sent by certified mail return 
receipt requested, on the certified mail receipt constitutes sufficient 
proof that the claim was timely filed.\2\ 37 CFR 259.5(e). However, the 
regulations do not provide for the filing of DART claims by alternative 
methods such as electronic submission or facsimile transmission; and 
until now, the Office has perceived no need for alternative methods in 
filing these claims.
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    \1\ In those years where the last day of February falls on a 
Saturday, Sunday, a holiday, or other nonbusiness day within the 
District of Columbia or the Federal Government, claims must be 
received by the first business day in March. 37 CFR 259.5(b).
    \2\ Claims dated only with a business meter that are received 
after the last day in February will not be accepted as having been 
timely filed. 37 CFR 259.5(c).
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    Unfortunately, recent events, namely the concerns about anthrax in 
the United States Postal Service facilities in the District of 
Columbia, have caused severe disruptions of postal service to the 
Office since October 17, 2001. See 66 FR 62942 (December 4, 2001) and 
66 FR 63267 (December 5, 2001). Such disruptions continue and will most 
likely worsen in the coming weeks, since all incoming mail will be 
diverted to an off-site location for treatment. Consequently, in light 
of these disruptions, the Office is offering and recommending 
alternative methods for the filing of DART claims to the 2001 royalty 
funds. The alternative methods set forth in this document apply only to 
the filing of DART claims for the 2001 royalties which are due by 
February 28, 2002, and in no way apply to other filings with the 
Office.
    This document covers only the means by which claims may be accepted 
as timely filed; all other filing requirements, such as the content of 
claims, remain unchanged, except as noted herein. See 37 CFR part 259.

Acceptable Methods of Filing DART Claims for the Year 2001

    Claims to the 2001 DART royalty funds may be submitted as follows:

a. Hand Delivery

    In order to best ensure the timely receipt by the Copyright Office 
of their DART claims, the Office strongly encourages claimants to 
personally deliver their claims by 5 p.m. E.S.T. on February 28, 2002, 
to the Office of the Copyright General Counsel, James Madison Memorial 
Building, Room 403, First and Independence Avenue, SE, Washington, DC. 
Private carriers should not be used for such delivery, as packages 
brought in by private carriers are subject to treatment at the off-site 
facility before being delivered to the Office and will be deemed 
untimely and rejected unless the treated package is received by the 
Office of the Copyright General Counsel by 5 p.m. E.S.T. on February 
28, 2002. Thus, claims should be hand delivered by the claimant or a 
representative of the claimant (i.e., the claimant's attorney or a 
member of the attorney's staff).
    Claimants hand delivering their claims should note that they must 
follow all provisions set forth in 37 CFR part 259.

b. Electronic Submission

    Claimants may submit their claims via electronic mail as file 
attachments, and such submissions should be sent to 
[email protected]'' The Office has devised forms for both single 
and joint DART claims, which are posted on its website at http://
www.loc.gov/copyright/forms/dart. Claimants filing their claims 
electronically must use these and only these forms, and the forms must 
be sent in a single file in either Adobe Portable Document (``PDF'') 
format, in Microsoft Word

[[Page 5214]]

Version 10.0 or earlier, or in WordPerfect 9 or earlier. Claims sent as 
attachments using formats other than those specified in this Notice 
will not be accepted by the Office. Likewise, claims sent as text 
messages, and not as attachments, will also be rejected by the Office.
    When filing claims electronically, all provisions set forth in 37 
CFR part 259 apply except Sec. 259.3(b), which requires the original 
signature of the claimant or of the claimant's duly authorized 
representative on the claim. The Office is waiving this provision for 
this filing period because at this time the Office is not equipped to 
receive and process electronic signatures.
    Claims filed by electronic mail must be received by the Office no 
later than 11:59 p.m. E.S.T. on February 28, 2002. Specifically, the 
electronic message must be received in the Office's server by that 
time. Any claim received after that time will be considered as untimely 
filed. Therefore, claimants submitting their claims via electronic mail 
are strongly encouraged to send their claim no later than February 27, 
2002, in order to better ensure timely receipt by the Office.

c. Facsimile

    Claims may be filed with the Office via facsimile transmission and 
such filings must be sent to (202) 252-3423. Claims filed in this 
manner must be received in the Office no later than 5 p.m. E.S.T. on 
February 28, 2002. The fax machine will be disconnected at that time. 
Claims sent to any other fax number will not be accepted by the Office.
    When filing claims via facsimile transmission, claimants must 
follow all provisions set forth in 37 CFR part 259 apply with the 
exception of Sec. 259.5(d), which prohibits the filing of claims by 
facsimile transmission. The Office is waiving this provision at this 
time in order to assist claimants in the timely filing of their claims.

d. By Mail

    Section 259.5(a)(2) directs claimants filing their claims by mail 
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box 
70977, Southwest Station, Washington, DC 20024. Claimants electing to 
send their claims by mail are encouraged to send their claims by 
certified mail return receipt requested, to have the certified mail 
receipt (PS Form 3800) stamped by the United States Postal Service, and 
to retain the certified mail receipt in order to provide proof of 
timely filing, should the claim reach the Office after the last day in 
February. In the event there is a question as to whether the claim was 
deposited with the United States Postal Service during the months of 
January or February, the claimant must produce the certified mail 
receipt (PS Form 3800) which bears a United States Postal Service 
postmark, indicating an appropriate date.
    However, concerns about possible anthrax contamination of the mail 
have resulted in the imminent treatment of all mail coming to the 
Copyright Office. In the near future, all Copyright Office mail will be 
sent to an off-site facility for treatment, including irradiation. 
Although it is not possible at this time to determine the length of 
time needed to complete this process, the delay could be significant. 
In addition, it is not known what, if any, damage will be caused to the 
mail as a result of treatment.
    Given these uncertainties, claimants are strongly urged not to use 
the mail as a means of filing their claims to the 2001 DART royalties. 
While the Office is not prohibiting the filing of claims by mail, those 
who do so assume the risk that their claim will not reach the Office in 
a timely manner, or at all, and/or that the mail, when received by the 
Office, will be significantly damaged. Claims sent by mail should be 
addressed in accordance with Sec. 259.5(a)(2), and the Office again 
strongly encourages the claimant to send the claim by certified mail 
return receipt requested, to have the certified mail receipt (PS Form 
3800) stamped by the United States Postal Service, and to retain the 
certified mail receipt, as it constitutes the only acceptable proof of 
timely filing of the claim. Claims dated only with a business meter 
that are received by the Office after February 28, 2002, will be 
rejected as being untimely filed.
    When filing claims by this method, claimants must follow all 
provisions set forth in 37 CFR part 259.
    If a claimant has deposited his or her claim in the mail prior to 
the publication of this Notice, the claimant is encouraged to also use 
one of the alternative methods of filing described herein in order to 
better ensure that their claim will be received by the Office in a 
timely fashion.

Waiver of Regulation

    The regulations governing the filing of DART claims require ``the 
original signature of the claimant or of a duly authorized 
representative of the claimant,'' 37 CFR 259.3(b), and do not allow 
claims to be filed by ``facsimile transmission,'' 37 CFR 259.5(d). This 
document, however, waives these provisions as set forth herein solely 
for the purpose of filing claims to the 2001 DART royalties. The Office 
is not, and indeed cannot, waive the statutory deadline for the filing 
of DART claims. See, United States v. Locke, 471 U.S. 84, 101 (1985). 
Thus, claimants are still required to file their claims by February 28, 
2002.
    Waiver of an agency's rules is ``appropriate only if special 
circumstances warrant a deviation from the general rule and such 
deviation will serve the public interest.'' Northeast Cellular 
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see 
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is 
reluctant to waive its regulations. However, the recent anthrax scare 
constitutes a special--indeed, an extraordinary--circumstance which has 
forced the Office to deviate from its usual mail processing procedures. 
Specifically, all incoming mail will be sent to an off-site location 
for treatment before being delivered to the Office. This process will 
delay the Office's receipt of its mail; however, the actual length of 
this delay is not known at this time. In addition, it is unknown at 
this time the degree to which the integrity of treated mail will be 
compromised. Thus, given such uncertainties, the Office believes that 
the public interest will best be served by waiving, for this filing 
period only, the requirement that DART claims bear the original 
signature of the claimant or of a duly authorized representative of the 
claimant, when, and only when, such claim is filed electronically.
    Because the Office is discouraging claimants from filing their 
claims through the mail due to the uncertainties surrounding the mail 
treatment process, the public interest would not be served if the 
Office required DART claimants to provide original signatures on their 
claims for this filing period and disallowed filing by facsimile 
because claimants would then be limited to filing their claims by the 
two options currently available--hand delivery and U.S. mail. Thus, the 
only way claimants could ensure timely filing of their claims would be 
to hand deliver them to the Office. Those claimants for whom personal 
delivery of their claims is not feasible would be placed at an unfair 
disadvantage.
    The Office cannot waive the statutory deadline set forth in 17 
U.S.C. 1007 and accept claims filed after February 28, 2002. See Locke, 
supra. Therefore, in order to serve the public interest the Office is 
providing claimants with alternative methods of filing, in addition to 
those set forth in the regulations, in

[[Page 5215]]

order to assist them in timely filing their claims. By allowing claims 
to be filed by electronic mail and facsimile transmission, the Office 
is affording to all claimants an equal opportunity to meet the 
statutory deadline.
    Again, this waiver applies only to the filing of DART claims to the 
2001 royalties which must be filed by February 28, 2002. Once the mail 
treatment process is operational, the Office may need to reexamine its 
regulations governing any filing coming into the Office. However, such 
reexamination, if necessary, will take place at a future date.

    Dated: February 1, 2002.
David O. Carson,
General Counsel.
[FR Doc. 02-2875 Filed 2-4-02; 8:45 am]
BILLING CODE 1410-33-P