[Federal Register: December 24, 2003 (Volume 68, Number 247)]
  [Rules and Regulations]
  [Page 74481-74483]
37 CFR Part 259
  
  [Docket No. 2003-4 CARP]
  
  Filing of Claims for DART Royalty Funds
  
  AGENCY: Copyright Office, Library of Congress.
  
  ACTION: Waiver of regulation.
Due to continuing delays in the receipt of mail, the Copyright Office of the Library of Congress is announcing alternative methods for the filing of claims to the DART royalty funds for the year 2003. In order to ensure that claims are timely received, claimants are encouraged to file their DART claims online or by fax, utilizing the special procedures described in this document.
EFFECTIVE DATE: January 1, 2004.
ADDRESSES:
Claims may be filed online through the Copyright Office Web site at http://www.copyright.gov/carp/dart/index.html. 
  Submissions by facsimile should be sent to (202) 252-3423. Submissions sent 
  by a commercial courier must be delivered to the Congressional Courier Acceptance 
  Site, located at 2nd and D Streets, NE., between 8:30 a.m. and 4 p.m. 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. If hand delivered by a party, an original and two copies of each claim 
  should be brought to: Office of the Copyright General Counsel, James Madison 
  Memorial Building, room 403, First and Independence Avenue, SE., Washington, 
  DC 20540. See SUPPLEMENTARY INFORMATION for information about online electronic 
  filing through the Copyright Office Web site.
  
  FOR FURTHER INFORMATION CONTACT:
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). The 
  regulations do not provide for the filing of DART claims by alternative 
  methods such as online submission or facsimile transmission.
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 \1\ In any year in which the last day of February falls on 
  Saturday, Sunday, a holiday or other nonbusiness day within the 
  District of Columbia or the Federal Government, claims received by 
  the Copyright Office by the first business day in March, or properly 
  addressed and deposited with sufficient postage with the United 
  States Postal Service and postmarked by the first business day in 
  March, shall be considered timely filed. 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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 In the year 2001, due to severe disruptions in the delivery of mail 
  to the Office caused by threat of possible anthrax contamination, the 
  Copyright Office waived the regulations requiring that claims bear 
  ``the original signature of the claimant or of a duly authorized 
  representative of the claimant,'' 37 CFR 259.3(b), and prohibiting the 
  filing by ``facsimile transmission,'' 37 CFR 259.5(d), for the filing 
  of claims to the DART royalty funds for the year 2001. See 67 FR 5213 
  (February 5, 2002). Due to continued security measures affecting the 
  delivery of mail, the Copyright Office waived regulations for the 
  filing of 2002 DART claims last year as well. Certain incoming mail 
  continues to be irradiated and all mail is diverted to an off-site 
  location for screening, resulting in delays in its delivery to the 
  Office. In light of these continuing delays, the Office once again is 
  waiving Sec. Sec. 259.3(b) and 259.5(d) and allowing the online and 
  facsimile submission of DART claims to the 2003 royalty funds. Online 
  forms are available and may be submitted via the Office's Web site. 
  Note however, that the alternative methods set forth in this Notice 
  apply only to the filing of DART claims for the 2003 royalties which 
  are due by March 1, 2004, and in no way apply to other filings with the 
  Office. Please note that as a result of the last date in February 
  occurring on a Sunday this year, the DART claims are due on Monday, 
  March 1, 2004, in accordance with 37 CFR 259.5(b).
  This Notice covers only the means by which claims may be accepted 
  as timely filed; all other filing requirements, such
[[Page 74482]]
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 2003
 Claims to the 2003 DART royalty funds may be submitted as follows:
  a. Online Submission
  In order to best ensure the timely receipt by the Copyright Office 
  of DART claims, the Office strongly encourages claimants to file their 
  claims online by February 29, 2004, via the Copyright Office Web site. 
  The Office has devised online electronic forms for filing both single 
  and joint DART claims. Claimants will be able to access and complete 
  the forms via the Copyright Office Web site and may submit the forms 
  online as provided in the instructions accompanying the forms. DART 
  forms will be posted on the Office Web site at http://www.copyright.gov/carp/dart/index.html.
  Claimants filing a joint claim 
may list each of their joint claimants directly on the Office's online 
  joint claim form or may submit the list of joint claimants as a file 
  attachment to the submission page. Lists of joint claimants sent as an 
  attachment must be in a single file in either Adobe Portable Document 
  (``PDF'') format, in Microsoft Word Version 2000 or earlier, in 
  WordPerfect 9 or earlier, or in ASCII text. There will be a browse 
  button on the form that will allow claimants to attach the file 
  containing the list of joint claimants and then to submit the completed 
  form to the Office. The attachment must contain only the list of names 
  of joint claimants. Joint claims with attachments containing 
  information other than the joint claimants' names will be rejected.
  The DART forms will be available for use during the months of 
  January, February and on March 1, 2004. It is critically important to 
  follow the instructions in completing the forms before submitting them 
  to the Office. Claims submitted online using forms or formats other 
  than those specified in this Notice will not be accepted by the Office. 
  Claims filed online must be received by the Office no later than 11:59 
  p.m. E.S.T. on March 1, 2004. Specifically, the completed electronic 
  forms must be received in the Office's server by that time. Any claim 
  received after that time will be considered untimely filed. Claimants 
  will receive an electronic mail message in response stating that the 
  Office has received their submission. Therefore, claimants utilizing 
  this filing option are required to provide an e-mail address. Claimants 
  submitting their claims online are strongly encouraged to send their 
  claim no later than February 29, 2004, in order to avoid any unforseen 
  delays in receipt of claims by the Office.
  When filing claims online, 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.
  b. 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 
  March 1, 2004. The fax machine will be disconnected at that time. 
  Claims sent to any other fax number will not be accepted by the Office.
  When filing claims via facsimile transmission, claimants must 
  follow all provisions set forth in 37 CFR part 259 with the exception 
  of Sec. 259.5(d), which prohibits the filing of claims by facsimile 
  transmission. The Office is waiving this provision at this time in 
  order to assist claimants in the timely filing of their claims.
  c. 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 March 1, 2004. 
  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, 
  February, or on March 1, 2004, the claimant must produce the certified 
  mail receipt (PS Form 3800) which bears a United States Postal Service 
  postmark, indicating an appropriate date.
  Because of delays in the receipt of mail, claimants are urged not 
  to use the mail as a means of filing their claims to the 2003 DART 
  royalty funds. While the Office is not prohibiting the filing of claims 
  by mail, those who do so assume the risk that their claim will not 
  reach the Office in a timely manner. Claims sent by mail must 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 March 1, 2004, 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.
  d. Hand Delivery
  Beginning December 29, 2003, the Library of Congress will no longer 
  accept in-person, on site deliveries from non-governmental, commercial 
  couriers or messengers. See 68 FR 70039 (December 16, 2003). Instead, 
  couriers must deliver materials for staff at the Library of Congress, 
  including claims to DART royalties, directly to the Congressional 
  Courier Acceptance Site (``CCAS''), located on 2nd and D Streets, NE. 
  The CCAS will accept items from couriers with proper identification, 
  e.g., a valid driver's license, Monday through Friday between 8:30 a.m. 
  and 4 p.m. The date of receipt as documented by CCAS will be considered 
  the date of receipt by the Copyright Office for purposes of timely 
  filing. Any claim received from CCAS which does not have a date stamp 
  of March 1, 2004 or earlier, will be considered untimely for this 
  filing period and rejected by the Copyright Office. Alternatively, if a 
  party chooses to hand deliver its claim personally, it can still do so. 
  However, it is possible that under the new system such deliveries may 
  still be redirected to CCAS for processing. For this reason, claimants 
  who choose to have their claims hand delivered to the Copyright Office 
  are strongly encouraged to have their claims delivered by 4 p.m. on 
  Friday, February 27, 2004. The Copyright Office cannot guarantee timely 
  receipt of a hand delivered claim after this date.
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 
  Notice, however, waives these provisions as set forth herein solely for 
  the purpose of filing claims to the 2003 DART royalties. The Office is 
  not, and indeed cannot, waive the statutory
[[Page 74483]]
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 March 1, 2004.
  Waiver of an agency's rules is ``appropriate only if special 
  circumstances warrant a deviation from the general rule and such 
  deviation will serve the public interest.'' Northeast Cellular 
  Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see 
  also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied, 
  409 U.S. 1027 (1972). Under ordinary circumstances, the Office is 
  reluctant to waive its regulations. However, the continuing delays in 
  the receipt of the mail constitutes a special circumstance which has 
  led the Office to deviate from its usual mail processing procedures. 
  Thus, given the delays in the receipt of mail, the Office believes that 
  the public interest will best be served by waiving, for this filing 
  period, the requirement that DART claims bear the original signature of 
  the claimant or of a duly authorized representative of the claimant, 
  when, and only when, such claim is filed online through the Office's 
  Web site. See 67 FR at 5214.
  The Office cannot waive the statutory deadline set forth in 17 
  U.S.C. 1007 and accept claims filed after March 1, 2004. See Locke, 
  supra. Therefore, in order to serve the public interest the Office is 
  providing claimants with alternative methods of filing, in addition to 
  those set forth in the regulations, in order to assist them in timely 
  filing their claims. By allowing claims to be filed online and by 
  facsimile transmission, the Office is affording to all claimants an 
  equal opportunity to meet the statutory deadline.
 
  Dated: December 19, 2003.
  
  Marybeth Peters, 
  Register of Copyrights.