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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules
time to submit evidence or proceed with issuing the default determination.
b Response to respondents submissions. If the respondent provides any evidence or other information in response to the notice of the pending default determination, the other parties to the proceeding shall be provided an opportunity to address such submissions by a deadline set by the Board.
c Hearings. The Board may hold a hearing at its discretion.
227.5

Issuance of determination.

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a Determination after respondent submits evidence. If the respondent provides evidence or information as set forth in 227.4, the Board shall consider all submissions. The Board then shall maintain or amend its proposed default determination. The resulting determination shall not be a default determination and instead shall be a final determination. The respondent may not challenge such determination under 17 U.S.C. 1508c1C and may only request reconsideration pursuant to 17 U.S.C. 1506w and the procedures set forth in part 230 of this subchapter.
b Determination after respondent fails to respond to notice. If the respondent fails to respond to the notice of pending default determination, the Board shall issue the proposed default determination as a final determination.
The respondent may only challenge such determination to the extent permitted under 17 U.S.C. 1508c or the procedures set forth in paragraph c of this section.
c Vacating a default determination.
If additional proceedings have not been initiated under 17 U.S.C. 1508c, the respondent may request in writing that the default determination be vacated and provide the reasons why the decision should be vacated. The respondent and claimant shall follow the general procedures for a request for reconsideration as set forth in part 230
of this subchapter. The Board may vacate the default determination in the interests of justice.
10. Part 228 is added to read as follows:
PART 228CLAIMANTS FAILURE TO
PROCEED
Sec.
228.1 Claimant or counterclaimants failure to complete service.
228.2 Claimant or counterclaimants failure to prosecute.
Authority: 17 U.S.C. 702, 1510.

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228.1 Claimant or counterclaimants failure to complete service.

a Failure to serve a respondent who is not a necessary party. If a claimant fails to timely complete service on a respondent who is not a necessary party, pursuant to 37 CFR 222.13, the Copyright Claims Board Board shall dismiss that respondent from the proceeding without prejudice. The proceeding shall continue against any remaining respondents.
b Failure to serve a respondent who is a necessary party. If a claimant fails to timely complete service on a respondent who is a necessary party, pursuant to 37 CFR 222.13, the Board shall dismiss the proceeding without prejudice.
c Complete failure to serve respondents. For a claim to proceed, a claimant must complete service on at least one respondent. If a claimant does not timely file any proof of service, the Board shall dismiss the proceeding without prejudice.
228.2 Claimant or counterclaimants failure to prosecute.

a General. If a claimant or counterclaimant fails to proceed in an active proceeding without justifiable cause, as demonstrated by a failure to meet any filing deadline or requirement set forth in the scheduling order or other order, upon request of a party or on its own initiative, the Board shall issue a notice following the missed deadline or requirement.
b Contents of notice. 1 A notice issued under paragraph a of this section shall inform the claimant that failure to proceed in the proceeding may result in the Board issuing a determination dismissing the claimants claims, including an award of attorneys fees and costs where appropriate, and shall explain the legal effects of such a determination. The notice shall provide the claimant with 30 days, beginning on the date of the notice, to respond to the notice and meet the missed deadline or requirement. The notice shall be issued to the claimant by mail and all known email addresses.
2 If the claimant has failed to respond 15 days after the notice of the failure to proceed, the Board shall send a second notice to the claimant according to the procedures set forth in paragraph b1 of this section. Such notice shall attach the first notice and shall remind the claimant that it must respond and meet the missed deadline or requirement within 30 days from the date of the first notice.
c Response to notice. 1 If the claimant cures the missed deadline or requirement within the time specified
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by the notice, the proceeding shall resume and the Board shall issue a revised scheduling order, if necessary.
2 If the claimant fails to cure the missed deadline or requirement within the time specified by the notice but submits a response that indicates an intent to re-engage with the proceeding, the Board shall consider the response and either provide the claimant with additional time to cure the missed deadline or requirement or issue a determination dismissing the claimants claims.
3 If the claimant 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 issue a determination dismissing the claimants claims.
d Determination dismissing claims.
A determination dismissing the claimants claims for failure to proceed in the active proceeding shall be with prejudice and shall include an award of attorneys fees and costs pursuant to 37
CFR 232.3, if appropriate. The claimant may only challenge such determination to the extent permitted under 17 U.S.C.
1508c or the procedures set forth in paragraph e of this section.
e Vacating a determination dismissing claims. If additional proceedings have not been initiated under 17 U.S.C. 1508c, the claimant may request in writing that the determination be vacated and provide the reasons supporting the request. The claimant and respondent shall follow the general procedures for a request for reconsideration as set forth in part 230
of this subchapter. The Board may vacate the determination of dismissal in the interests of justice.
11. Part 229 is added to read as follows:
PART 229RECORDS AND
PUBLICATION
Sec.
229.1
229.2

Access to records and proceedings.
Record certification.

Authority: 17 U.S.C. 702, 1510.
229.1 Access to records and proceedings.

a Official written record.
Submissions by parties to a proceeding and documents issued by the Copyright Claims Board Board shall constitute the official written record.
b Access to record. Any member of the public may inspect the official written record through the electronic filing system, except any materials that have been marked confidential pursuant to 37 CFR 222.18.

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