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Federal Register / Vol. 86, No. 233 / Wednesday, December 8, 2021 / Proposed Rules hearings in the circumstance where such a hearing is requested by all parties and all parties can attend. The Office welcomes comments regarding this provision and whether the statute can be read to allow in-person hearings when requested by all parties and where all parties can attend.
G. Post-Determination Proceedings After a determination is rendered, the CCB may reconsider it for clear error of law or fact upon request of a party.150
If reconsideration is denied, the Register of Copyrights may review the CCBs decision upon request of a party to determine whether there was an abuse of discretion in denying reconsideration.151 The Office requested comment on both post-determination proceedings, and proposes regulations as further set forth below.
1. Request for Reconsideration
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The CCBs determinations are subject to reconsideration or amendment by the CCB itself, if a party submits a written request within thirty days of the final determination.152 After providing other parties an opportunity to address the request for reconsideration, the CCB
shall either deny the request or issue an amended final determination.153 The request should not merely repeat previous arguments made before the CCB, and the CCB will not accept new evidence unless a party demonstrates through clear and convincing evidence that the evidence was not available in the exercise of reasonable diligence prior to the submission of written testimony. After the requesting party sets forth the purported error that it believes was material to the outcome or a technical mistake, the non-requesting party has the opportunity to respond or otherwise oppose the points made. The Office proposes that responses to requests for reconsideration be filed within twenty-one days after service of a request for reconsideration, and that each partys brief may be no more than twelve double-spaced pages. The Office has not included a provision for a reply to the response by the requesting party before the CCB renders a decision, as the statute contemplates only an opportunity for other parties to address the request. 154
2. Registers Review Where the CCB denies a partys request for reconsideration of a final at 1506w.
at 1506w, x.
152 Id. at 1506w.
153 Id.
154 Id. at 1506x.

determination in whole or in part, that party can request that the Register review the determination. Such review shall be limited to consideration of whether the Copyright Claims Board abused its discretion in denying reconsideration of the determination. 155 A request must be accompanied by a reasonable filing fee, to be established by regulation.156
After other parties have had an opportunity to address the reconsideration request, the Register must either deny the request for review, or remand the proceeding to the Copyright Claims Board for reconsideration of issues specified in the remand and for issuance of an amended final determination. 157 The Office sought public input on any issues relating to the Registers review, including regulatory standards for the substance of a request, a reasonable filing fee, and post-review procedures.158
Under the proposed rule, a party may request the Registers review within 30
days of a denial of a request for reconsideration. The request must identify what the requesting party believes to be the CCBs abuse of discretion in denying the request for reconsideration and must be accompanied by a filing fee. The Office proposes that responses be filed within twenty-one days after service of a request for Registers review, following procedures similar to those set forth above with regard to a request for reconsideration filed with the CCB.
Only evidence that was previously submitted to the CCB as part of written testimony, at a hearing, or in response to a specific request for evidence from the CCB may be submitted as part of the Registers review process.
The statute provides if the Copyright Claims Board denies a party a request for reconsideration of a final determination, . . . that party may . . .
request review. 159 This provision is silent as to the non-requesting partys ability to request the Registers review if it loses the reconsideration request. That seems to suggest that only a party who has unsuccessfully requested reconsideration by the CCB may seek Register review, but not the nonrequesting party, even where the request was successful and the determination is amended. Accordingly, the Office has not included a provision for the nonmoving party to request review of an
150 Id.

155 Id.

151 Id.

156 Id.

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157 Id.
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amended final determination. The Office invites comment on this issue, as well as the appropriateness of allowing the party which did not seek reconsideration, but which now finds itself on the losing end of the matter, to seek reconsideration of an amended final determination i.e., reconsideration of the reconsideration without relitigating issues the CCB has already considered.
Finally, the Office proposes a $300 fee to request the Registers review. In setting this fee, the Office finds that the fee applicable to a second request for reconsideration of a denial of registration provides a useful analogue.
When the Registration Program refuses to register a work, the applicant has two opportunities to request reconsideration. The first request is considered within the Registration Program. Second requests are considered by the Register or her designee, the General Counsel, and a third senior member of the Office.160
The fee for a second reconsideration is $700,161 though the actual cost for providing the service is $4,471.162 The Office anticipates that the Registers review of a CCB determination will operate in a similar manner and will necessarily involve the time and expertise of the Register and senior staff.
Setting the fee at $300 reasonably reflects the narrower scope of review under this procedure as compared to registration requests for reconsideration and, in combination with the proposed filing fee for initiating a claim,163
complies with the statutory ceiling of $402.164
List of Subjects 37 CFR Part 201
Copyright, General provisions.
37 CFR Part 220
Claims, Copyright, General.
37 CFR Part 222
Claims, Copyright.
160 See generally U.S. Copyright Office, Compendium of U.S. Copyright Practices, ch. 1700
3d ed. 2021.
161 37 CFR 201.3d4ii.
162 Booz Allen Hamilton, 2017 Fee Study Report 2, 26 2017, https www.copyright.gov/
rulemaking/feestudy2018/fee_study_report.pdf.
163 See 86 FR 53905 proposed 37 CFR
201.3g1.
164 17 U.S.C. 1501c setting the sum total of filing fees as no less than $100 and no more than the cost of filing an action in a district court of the United States. The statutory fee for filing suit in a federal district court is $350, 28 U.S.C. 1914a, and an additional fee of $52 is charged as an administrative fee by the Judicial Conference of the United States. Id.

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