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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules 226.3 Nature of a smaller claims proceeding.

a Proceeding before a Copyright Claims Officer. A smaller claims proceeding shall be heard by one Officer. One of the three Officers shall hear smaller claims proceedings on a rotating basis at the Copyright Claims Boards discretion.
b Limited discovery. Discovery between the parties is limited to the standard discovery set forth in 37 CFR
225.2 through 225.4. Parties may not submit additional discovery requests, and the assigned Officer will not consider such requests.
c No expert testimony. Parties may not submit expert testimony for consideration. Any expert testimony submitted shall be disregarded by the assigned Officer.
d Determination on written testimony. The Officer will issue a determination based on the written testimony submitted pursuant to 37 CFR
222.14. No hearing will be held prior to a determination.
9. Part 227 is added to read as follows:
PART 227DEFAULT
Sec.
227.1 Failure by respondent to appear or participate in proceeding.
227.2 Submission of evidence by claimant in support of default determination.
227.3 Notice of proposed default determination.
227.4 Opportunity for respondent to submit evidence.
227.5 Issuance of determination.
Authority: 17 U.S.C. 702, 1510.

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227.1 Failure by respondent to appear or participate in proceeding.

a General. For purposes of this section, the term respondent shall include counterclaim respondents. If a respondent fails to file a response or fails, without justifiable cause, to meet any filing deadline or other requirement set forth in the scheduling order or other order, upon notice of a party or by its own initiative, the Copyright Claims Board Board may issue a notice to the respondent following the missed deadline or requirement.
b Contents of notice1 First notice. A notice issued under this section shall inform the respondent that failure to participate in the proceeding may result in the Board entering a default determination against the respondent, including dismissal of any counterclaims asserted by the respondent, and shall explain the legal effects of a default determination. The notice shall provide the respondent with 30 days from the date of the notice to cure the missed deadline or
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requirement. The notice shall be issued to the respondent by mail and all known email addresses.
2 Second notice. If the respondent has failed to respond 15 days after the notice of the pendency of the default determination, the Board shall send a second notice to the respondent according to the procedures set forth in paragraph b1 of this section. Such notice shall attach the first notice and shall remind the respondent that it must cure the missed deadline or requirement within 30 days from the date of the first notice.
c Response to notice. If the respondent cures the missed deadline or requirement within the time specified by the notice, the proceeding shall resume and the Board shall issue a revised scheduling order, if necessary. If the respondent fails to timely cure but submits a response that indicates an intent to re-engage with the proceeding, the Board shall consider the response and either provide the respondent with additional time to meet the deadline or proceed with the default determination process. If the respondent fails to cure the missed deadline or requirement within the time specified by the notice and does not otherwise respond to the notice, the Board shall require the claimant to submit evidence in support of a default determination, as set forth in 227.2.
d Multiple missed deadlines. A
respondent may cure a missed deadline according to the procedure set forth in this section twice without default being issued. If the respondent misses a third deadline in the scheduling order without good cause, the Board may, in its discretion, proceed directly to requiring submission of evidence to proceed with a default determination as set forth in 227.2.

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227.3 Notice of proposed default determination.

a Consideration of evidence.
Following submission of evidence by the claimant, as set forth in 227.2, the Board shall review such evidence and shall determine whether it is sufficient to support a finding in favor of the claimant under applicable law. As part of its review, the Board shall consider whether the respondent has a meritorious defense. If the Board finds the evidence sufficient to support a finding in favor of the claimant, it shall determine the appropriate relief and damages, if any, to be awarded.
1 If the Board determines that the evidence is sufficient to support a finding in favor of the claimant, the Board shall prepare a proposed default determination.
2 If the Board determines that the evidence is insufficient to support a finding in favor of the claimant, the Board shall dismiss the proceeding without prejudice.
b Proposed default determination.
The proposed default determination shall include a finding in favor of the claimant and the damages awarded, if any. The proposed default determination shall also include dismissal of any counterclaims asserted by the respondent.
c Notice to respondent. The Board shall provide written notice to the respondent of the pendency of the default determination and the legal significance of the default determination, including any liability for damages, if applicable, as set forth in 17 U.S.C. 1506u2. The notice shall be accompanied by the proposed default determination and shall provide the respondent 30 days, beginning on the date of the notice, to submit any evidence or other information in opposition to the proposed default determination.

227.2 Submission of evidence by claimant in support of default determination.

227.4 Opportunity for respondent to submit evidence.

a General. If a respondent fails to appear or ceases to participate in the proceeding and the Board elects to proceed to a default determination, the Board shall require the claimant to submit written direct testimony, as set forth in 227.1.
b Additional evidence. Following submission of the claimants written testimony in support of a default determination, the Board shall consider the claimants submissions and may request any additional evidence from the claimant within the claimants possession.

a Response to notice by respondent.
The respondent may submit in writing any evidence or information in opposition to the proposed default determination. The Board shall consider the submission and may request that the respondent submit additional information, including in the form of written response testimony, as set forth in 37 CFR 222.14, by a deadline set by the Board. If the respondent fails to timely submit evidence but submits a response that indicates an intent to reengage with the proceeding, the Board shall consider the response and either provide the respondent with additional
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