Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 13171 

1Public Law 116–260, sec. 212, 134 Stat. 1182, 

2176 (2020). 

2 86 FR 16156, 16161 (Mar. 26, 2021). 

3 17 U.S.C. 1506(aa)(1). 

4 Id. at 1506(aa)(2)(B). 

5 Id. at 1506(aa)(4). The CASE Act’s legislative 

history does not discuss the library and archives 

opt-out provision. See generally S. Rep. No. 116– 

105 (2019); H.R. Rep. No. 116–252 (2019) (Note, the 

CASE Act’s legislative history cited is for the CASE 

Act of 2019, S. 1273, 116th Cong. (2019) and H.R. 

2426, 116th Cong. (2019), bills largely identical to 

the CASE Act of 2020, with the notable exception 

that these earlier bills did not contain the libraries 

and archives opt-out provision.). 

6 Id. at 1507(b)(2). 

7 86 FR 49273 (Sept. 2, 2021). Comments received 

in response to the March 26, 2021 NOI and 

September 2, 2021 NPRM are available at https:// 

www.regulations.gov/document/COLC-2021-0001- 

0001/comment and https://www.regulations.gov/ 

document/COLC-2021-0003-0001/comment, 

respectively. References to these comments are by 

party name (abbreviated where appropriate), 

followed by ‘‘Initial NOI Comments,’’ ‘‘Reply NOI 

Comments,’’ or ‘‘NPRM Comments,’’ as appropriate. 8 86 FR at 16161; 86 FR at 49274–77. 

9 86 FR at 49275 (quoting 17 U.S.C. 1506(aa)(4)). 

10 Id. 11 Id. The Office takes a similar approach 

regarding registration materials. See U.S. Copyright 

Office, Compendium of U.S. Copyright Office 

Practices sec. 309.2 (3d ed. 2021). 

165.905(a)(1) and (2). The USX 

Superfund Site Safety Zone: St. Louis 

River, includes Safety Zone #1 (North 

Spirit Lake): North Boundary 46°41′33′′ 

W, South Boundary 46°41′18′′ W, East 

Boundary 92°11′53′′ W, West Boundary 

92°12′11′′ W, and Safety Zone #2 (South 

Spirit Lake): North Boundary 46°40′45′′ 

N, South Boundary 46°40′33′′ N, East 

Boundary 92°11′40′′ W, West Boundary 

92°12′05′′ W. Transit of vessels through 

the waters covered by these zones is 

prohibited. Swimming (including water 

skiing or other recreational use of the 

water which involves a substantial risk 

of immersion in the water) or taking of 

fish (including all forms of aquatic 

animals) from the waters covered by 

these safety zones is prohibited at all 

times. Our regulation for safety zones 

within the Ninth Coast Guard District 

identifies this area is a regulated area 

within Spirit Lake Duluth, MN. In 

addition to this notice of enforcement in 

the Federal Register, the Coast Guard 

plans to provide notification of this 

enforcement period via the Local Notice 

to Mariners and marine information 

broadcasts. 

Dated: March 3, 2022. 

Frances M. Smith, 

Captain of the Port MSU Duluth, CDR, U.S. 

Coast Guard. 

[FR Doc. 2022–04905 Filed 3–8–22; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 223 

[Docket No. 2021–4] 

Small Claims Procedures for Library 

and Archives Opt-Outs and Class 

Actions 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final rule. 

SUMMARY: The U.S. Copyright Office is 

issuing a final rule regarding the 

procedures for libraries and archives to 

preemptively opt out of proceedings 

before the Copyright Claims Board 

(‘‘CCB’’) and the procedures for a party 

before the CCB with respect to a class 

action proceeding, under the Copyright 

Alternative in Small-Claims 

Enforcement Act of 2020. 

DATES: Effective April 8, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Megan Efthimiadis, Assistant to the 

General Counsel, by email at meft@

copyright.gov, or by telephone at 202– 

707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Copyright Alternative in SmallClaims Enforcement (‘‘CASE’’) Act of 

2020 1 directs the Copyright Office to 

establish the Copyright Claims Board 

(‘‘CCB’’ or ‘‘Board’’), a voluntary 

tribunal within the Office comprised of 

three Copyright Claims Officers who 

have the authority to render 

determinations on certain copyright 

claims for economic recoveries under 

the statutory threshold. The Office 

issued a notification of inquiry (‘‘NOI’’) 

to describe the CASE Act’s legislative 

background and regulatory scope and to 

ask for public input on various topics, 

including procedures addressing a 

preemptive opt-out from CASE Act 

proceedings (sometimes referred to as a 

‘‘blanket’’ opt-out) for libraries and 

archives and procedures associated with 

class actions.2

The CASE Act directs the Register of 

Copyrights to ‘‘establish regulations 

allowing for a library or archives that 

does not wish to participate in 

proceedings before the Copyright Claims 

Board to preemptively opt out of such 

proceedings.’’ 3 The Office must also 

‘‘compile and maintain a publicly 

available list of the libraries and 

archives that have successfully opted 

out of proceedings.’’ 4 For a library or 

archives to qualify for the opt-out 

election, it must ‘‘qualif[y] for the 

limitations on exclusive rights under 

section 108 [of title 17].’’ 5

The CASE Act also provides that the 

Register will establish procedures for a 

claimant ‘‘who receives notice of a 

pending class action, arising out of the 

same transaction or occurrence as the 

proceeding before the [CCB],’’ including 

the ability to ‘‘opt out of the class 

action.’’ 6

In September 2021, the Office 

published a notice of proposed 

rulemaking (‘‘NPRM’’) addressing these 

two topics in depth and proposing 

regulatory language.7 In both the NOI 

and the NPRM, the Office requested 

input on issues related to the library and 

archives opt-out provision, including 

whether the Office should require proof 

or a certification that a library or 

archives qualifies for the opt-out 

provision; which entities, principals, or 

agents should be allowed to opt out on 

behalf of a library or archives; how the 

opt-out provision would apply to library 

or archives employees; and various 

transparency and functionality 

considerations related to publication of 

the opt-out list.8 Commenters were 

generally supportive of the proposed 

library and archives opt-out regulations, 

with the exception of the matters 

addressed below. No parties submitted 

comments addressing the proposed 

class action regulations. The Office is 

adopting the proposed class action 

regulations with one clarification, as 

addressed below. 

II. Discussion of Final Rule 

A. Proof or Certification Requirement 

The Office’s NPRM proposed ‘‘that 

any library or archives that wishes to 

take advantage of the statutory 

preemptive opt-out option must submit 

a self-certification that it ‘qualifies for 

the limitations on exclusive rights under 

section 108.’ ’’ 9 The Office explained 

that this requirement could ‘‘balance the 

statutory goals of ensuring that only 

libraries and archives are eligible for a 

preemptive opt-out, but also that any 

such entities are not overly burdened in 

effecting that election.’’ 10 The proposed 

rule also stated that any library or 

archives that had preemptively opted 

out, but that was later found by a federal 

court not to qualify for the section 108 

exemptions, must report this finding to 

the CCB. 

The Office proposed to ‘‘accept the 

facts stated in the opt-out submission 

unless they are implausible or conflict 

with sources of information that are 

known to the Office or the general 

public.’’ 11 Where the CCB believes that 

an entity does not qualify under section 

108, that entity would be not be added 

to, or would be removed from, the 

preemptive opt-out list. The Office 

would communicate its conclusion and 


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12 86 FR at 49275. 

13Am. Ass’n of L. Libraries (‘‘AALL’’) NPRM 

Comments at 1; see also AALL Initial NOI 

Comments at 1–2 (noting that a self-certification 

approach ‘‘would meet the intent of Congress, 

which created the preemptive opt out for libraries 

and archives to provide an efficient and streamlined 

system for these organizations and to help them 

avoid the burdensome administrative requirements 

of repeated opt outs’’). 

14Niskanen Ctr. NPRM Comments at 2. 

15See Library Copyright All. (‘‘LCA’’) Initial NOI 

Comments at 1; Univ. of Mich. Library Initial NOI 

Comments at 4–5; Univ. Infor. Pol’y Officers Reply 

NOI Comments at 1. 

16Sci. Fiction & Fantasy Writers of Am. 

(‘‘SFWA’’) NPRM Comments at 2 (noting the 

potential for ‘‘internet pirates’’ who ‘‘describe 

themselves as ‘libraries’ or ‘archives’ to mislead 

others’’ who would try to use the blanket opt-out 

option); Am. Intell. Prop. L. Ass’n (‘‘AIPLA’’) Initial 

NOI Comments at 4; Copyright Alliance, Am. 

Photographic Artists, Am. Soc’y for Collective 

Rights Licensing, Am. Soc’y of Media 

Photographers, The Authors Guild, CreativeFuture, 

Digital Media Licensing Ass’n, Graphic Artists 

Guild, Indep. Book Pubs. Ass’n, Music Creators N. 

Am., Nat’l Music Council of the U.S., Nat’l Press 

Photographers Ass’n, N. Am. Nature Photography 

Ass’n, Prof. Photographers of Am., Recording 

Academy, Screen Actors Guild-Am. Fed. of 

Television and Radio Artists, Soc’y of Composers & 

Lyricists, Songwriters Guild of Am. & Songwriters 

of N. Am. (‘‘Copyright Alliance et al.’’) Reply NOI 

Comments at 12–13 (‘‘To allow entities to ‘selfcertify’ would be to open the blanket opt out to any 

entity claiming to be a ‘library’ or ‘archive’ 

regardless of whether the entity rightfully qualifies 

under the law.’’). 

17SFWA NPRM Comments at 2–3 (noting 

concerns that a library or archives would remain on 

the opt-out list until the CCB makes a final 

determination on its status and suggesting that the 

CCB should thus ‘‘refrain from granting the entity 

status as a library or archives until such time as it 

has conducted an adequate review’’). 18Copyright Alliance et al. NPRM Comments at 

6; SFWA Reply NOI Comments at 2 (agreeing that 

a ‘‘library or archive[s] should make its declaration 

under penalty of perjury’’); see also Copyright 

Alliance et al. Initial NOI Comments at 20 

(supporting that opt-out elections should be made 

under ‘‘penalty of perjury’’ and voicing concerns 

related to courts relying on an Office or CCB section 

108 qualification determination). 

19Terisa Shoremount NPRM Comments at 1. 20Copyright Alliance et al. NPRM Comments at 

6; see also MPA, RIAA & SIIA Reply NOI Comments 

at 10; LCA Reply NOI Comments at 1–2. 21SFWA NPRM Comments at 3. 22 Id. 

23Niskanen Ctr. NPRM Comments at 2. 

24See 18 U.S.C. 1001(a)(3) (requiring that any 

document submitted to a Federal agency must be 

‘‘materially false, fictitious, or fraudulent statement 

or entry’’ and made ‘‘knowingly and willfully’’ to 

be a violation). 

25 86 FR at 49275 (citing U.S. Copyright Office, 

Compendium of U.S. Copyright Office Practices sec. 

309.2 (3d ed. 2021)). 

its intent to either not add the entity to 

the preemptive opt-out list or remove 

the entity from that list, as appropriate, 

and would allow the entity to provide 

evidence supporting its qualification for 

the exemption within 30 days of the 

Office’s notice. If the Register 

subsequently determined that the 

evidence submitted by the entity 

demonstrates that it qualifies under 

section 108, the entity would be added 

to, or remain on, the preemptive opt-out 

list. The Office did not believe it was 

necessary to establish a separate 

adversarial procedure for parties to raise 

objections that an entity does not 

qualify for the opt-out list. Instead, the 

Office proposed that claimants who 

attempt to bring claims against entities 

on the opt-out list can assert that the 

subject library or archives does not 

qualify for inclusion on the list as part 

of their claim.12

The American Association of Law 

Libraries (‘‘AALL’’) supported the selfcertification provision, calling it 

‘‘[e]specially important’’ and one of 

several provisions that would allow 

easy and efficient opt-out elections.13

The Niskanen Center also favored the 

self-certification approach, but 

suggested that any misrepresentation 

penalty ‘‘should not necessarily be 

perjury,’’ and that ‘‘any sanctions 

applied (other than the loss [of] the 

ability to opt out as defined in the Act) 

should only be applied if the party 

which made the misrepresentations did 

so with intent.’’ 14 Those representing 

libraries generally favored selfcertification.15

Other commenters suggested that a 

self-certification process could lead to 

fraudulent opt-outs 16 and would lead to 

delays or inefficiencies in CCB 

proceedings.17 Some supported a 

requirement that any certifications be 

made under penalty of perjury.18

Commenter Terisa Shoremount 

suggested that the Office should require 

‘‘a short statement about the entity’s 

basis for qualifying to opt-out,’’ which 

would ‘‘not overly burden libraries and 

archives’’ and ‘‘could promote 

efficiency,’’ and that publishing this 

statement on the library and archives 

opt-out list would increase transparency 

by ‘‘allow[ing] potential adversaries to 

view why the library or archive[s] 

qualifies which may reduce opt-out 

status challenges.’’ 19

Regarding the effect of a library or 

archives opt-out election, the Copyright 

Alliance et al. reiterated their position 

that these regulations ‘‘should clearly 

state that a determination by the CCB 

regarding an entity’s status as qualifying 

for the blanket opt-out should not be 

relied upon or cited by any other 

tribunal in determining whether an 

entity qualifies for the exceptions under 

section 108 of the Copyright Act.’’ 20

Relatedly, the Science Fiction and 

Fantasy Writers of America ‘‘strongly 

advise[d] the [Office] to refrain from 

placing entities on its list of libraries 

and archives that have opted out if those 

entities are parties in ongoing, related 

litigation,’’ believing that the Office’s 

‘‘official acceptance of a self-serving 

declaration could well affect the course 

of the judicial proceeding and its 

ultimate outcome.’’ 21 They also 

suggested that the CCB hold its 

determination in abeyance pending 

ongoing litigation.22 The Niskanen 

Center also argued that the Copyright 

Office should make a determination 

whether a library or archives qualifies 

for the opt-out, ‘‘only if there are no 

appeals pending in superior courts.’’ 23

The Office believes that the proposed 

rule addresses commenters’ concerns, 

but will include additional language in 

the final rule confirming that the CCB’s 

acceptance of an entity’s representation 

regarding its qualifying status for the 

preemptive opt-out does not constitute 

a legal conclusion by the Board or the 

Register of Copyrights for any other 

purpose. To help identify the entity that 

is seeking to preemptively opt out of 

CCB proceedings, the final rule will 

require those libraries and archives that 

have a website to supply its address. 

Further, the requirement that any 

certification must be made under the 

penalty of perjury will deter fraudulent 

submissions and, as the federal law 

prohibiting fraudulent statements made 

to legislative agencies already requires 

an intent element,24 the rule does not 

need to include a separate intent 

element. 

Finally, the Office does not believe 

the CCB should be required to hold its 

determination in abeyance pending 

appeals or ongoing litigation where an 

entity’s qualification for section 108 is 

at issue. As federal litigation can take 

years to resolve, waiting for a court’s 

final determination regarding a 

purported library’s or archives’ status 

could undercut the CCB’s value in 

resolving claims expeditiously. Further, 

if the court ultimately determines that 

the entity qualifies under section 108, 

the claimant could unwittingly exhaust 

the statute of limitations. Importantly, 

the preemptive opt-out option only 

offers a jurisdictional privilege— 

respondents can always opt out of 

individual CCB proceedings, even if the 

preemptive opt-out is unavailable. 

B. Opt-Out Election Timing and 

Disqualification 

The NPRM stated that ‘‘[t]he Office 

will accept the facts stated in the optout submission unless they are 

implausible or conflict with sources of 

information that are known to the Office 

or the general public.’’ 25 The proposed 

rule also required that ‘‘any library or 

archives that has been found by a 

federal court not to qualify for the 


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Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 13173 

26 Id. 

27 Id. 

28Copyright Alliance et al. NPRM Comments at 

7–8; SFWA NPRM Comments at 2–3. 

29Copyright Alliance et al. NPRM Comments at 

7–8. 

30SFWA NPRM Comments at 2. 

31Niskanen Ctr. NPRM Comments at 2 (citing 17 

U.S.C. 1506(a)(1)). 

32Copyright Alliance et al. NPRM Comments at 

7 (‘‘In both instances, we believe that the ability of 

a library or archives to take advantage of the 

privilege of a blanket opt-out should be contingent 

on it properly notifying the Office of these 

changes.’’). 

33Copyright Alliance et al. NPRM Comments at 

6. 

34 Id. 

35The one exception to this rule is for library and 

archives opt-out elections that are filed before this 

rule’s effective date. These filings will become 

effective on the rule’s effective date. This provision 

will allow more time for libraries and archives to 

make an opt-out election far in advance of the date 

that the CCB commences operations, and addresses 

the circumstance that the libraries and archives optout form will be posted before this rule’s effective 

date. 

section 108 exemptions report this 

information to the CCB.’’ 26 In either 

circumstance, the entity would not be 

added to, or would be removed from, 

the opt-out list. Third parties would not 

be allowed to challenge an entity’s 

preemptive opt-out eligibility, separate 

from the CCB’s adjudication of 

individual cases.27 The proposed rule 

did not address the review criteria and 

standards by which a library or archives 

would not be added to, or be removed 

from, the opt-out list; the effect of such 

a removal; and the timing of an opt-out 

election with respect to active claims. 

Commenters asked the Office to 

clarify rules related to these issues. With 

respect to the CCB’s review criteria and 

standards, the Science Fiction and 

Fantasy Writers of America and 

Copyright Alliance et al. each noted that 

the proposed regulations do not identify 

either a review scope or timeline for 

when the CCB must evaluate whether a 

library or archives qualifies for the 

preemptive opt-out list.28 The Copyright 

Alliance et al. suggested that ‘‘[t]he 

scope of the review in the library and 

archives opt-out context would require, 

at minimum, a simple web search to 

determine if in fact the facts stated 

within the opt-out submission are in 

conflict with information known to the 

public’’ and, further, that ‘‘it is unclear 

whether the Office intends to take a 

ministerial approach, whereby it places 

entities on the list with little or no 

initial review, with the ability to later 

remove those entities, or if it will take 

a more proactive and discretionary 

approach, whereby it reviews each 

submission before placing the entity on 

the list, while maintaining the ability to 

remove the entity later if appropriate,’’ 

concluding that it preferred the 

‘‘proactive and discretionary’’ 

approach.29 The Science Fiction and 

Fantasy Writers of America stated that 

the CCB should have ‘‘the affirmative 

obligation to look beyond a mere 

declaration in determining whether an 

entity is actually a library or archive[s] 

in accordance with case law when there 

is strong reason to do so.’’ 30 Taking an 

opposing view, the Niskanen Center 

stated that it would be preferable for an 

Article III court to handle disputes over 

whether an entity qualifies as a library 

or archives under section 108, 

elaborating that ‘‘[t]his would reduce 

the burden on the Copyright Office and 

the Copyright Claims Board and keep 

implementation within the spirit of the 

CASE Act as an efficient-low cost tool 

to apply legal questions which have 

already been answered by a traditional 

Article III Court.’’ 31

The Office concludes that the NPRM 

approach, which neither requires nor 

prohibits the CCB from inquiring into 

whether an entity qualifies for the 

library and archives preemptive opt-out 

election, appropriately balances 

efficiency and the need to exclude 

ineligible entities. The aforementioned 

additional requirement to supply a 

website address in the opt-out request 

should help flag whether the entity 

qualifies for the opt-out election. The 

Office also believes that a modification 

to the procedure when a claim is filed 

against a library or archives that is 

included on the opt-out list will result 

in greater efficiency. As provided in the 

proposed rule, a claim filed against a 

library or archives on the opt-out list 

must assert material factual allegations 

supporting the claimant’s challenge to 

the subject library’s or archives’ 

eligibility for the opt-out. The Office 

concludes that an initial determination 

of the viability of the challenge will be 

made prior to approving service of the 

claim. If the claim’s allegations are 

colorable, the CCB will notify the 

subject library or archives of the 

challenge to its qualifications and the 

library or archives will have an 

opportunity to provide evidence 

supporting its qualifications before a 

decision is made either to dismiss the 

claim against it or to remove the entity 

from the opt-out list and allow the claim 

to proceed to compliance review. As 

mentioned above, if the claim is 

permitted to proceed, the respondent 

entity would retain the ability to opt out 

of the individual claim. 

The Copyright Alliance et al. also 

suggested that an entity that fails to 

notify the Office of changes in relevant 

contact information or of a 

determination by a court that it does not 

qualify for the section 108 exceptions 

should lose the ability to preemptively 

opt out of CCB proceedings.32 The 

Office believes that the CCB should be 

able to take any reasonable corrective 

action against a library or archives that 

violates these regulations. While a court 

determination that a library or archives 

does not qualify for section 108 will 

automatically result in the entity losing 

the ability to preemptively opt out of 

CCB proceedings, the CCB may 

determine that willful conduct or a 

pattern of noncompliance should have 

the same result, although the Office 

anticipates that such corrective action 

would be necessary on only rare 

occasions. 

With respect to the effective date of a 

preemptive opt-out election, the 

Copyright Alliance et al. argued that 

such an election should be ‘‘forward 

reaching only’’ and not apply to any 

claims that were filed against the 

libraries or archives before they were 

added to the publicly available list, even 

if their opt-out request had been filed 

and was under review prior to the filing 

date of the claim.33 Alternatively, they 

asked that ‘‘any fees paid by the 

claimant [be] refundable if a claimant is 

prevented from moving forward with a 

case because the library or archives had 

filed to preemptively opt-out before the 

case was filed.’’ 34

The Office agrees that the statute 

clearly provides that the opt-out 

election for library and archives should 

be prospective, because it is a 

preemptive election. Accordingly, once 

a claimant has been instructed by the 

CCB to serve its claim on an entity, a 

subsequently-approved preemptive optout election would not apply to that 

claim. In that situation, the library or 

archives would be in the same position 

as other respondents and may file an 

opt-out election to the specific claim. 

The Office acknowledges that there 

could be a situation where an entity has 

submitted its application for the 

preemptive opt-out, but its application 

is filed or still under review at a point 

in time when the CCB has already found 

a claim against the entity to be 

compliant and has instructed the 

claimant to serve the claim. To provide 

for this limited situation, the Office 

concludes that the effective date of a 

preemptive opt-out request is the date 

the library or archives is added to the 

public opt-out list.35 Practically, this 

should not pose a significant problem 

for entities seeking to opt out 

preemptively, as the opt-out election 

will become available to libraries and 


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36 86 FR at 49276 (citing AIPLA Initial NOI 

Comments at 5; Copyright Alliance et al. Initial NOI 

Comments at 21; LCA Initial NOI Comments at 2.). 

37See Copyright Alliance et al. NPRM Comments 

at 8 (‘‘Ideally, the list will be updated immediately 

upon any changes . . . but, at minimum, the list 

should be updated biweekly.’’); Niskanen Ctr. 

NPRM Comments at 3 (‘‘The Copyright Office and 

the Copyright Claims Board should make as 

available as possible the opportunity to look up 

which institutions have chosen the blanket opt-out 

option.’’). 

38Niskanen Ctr. NPRM Comments at 3. 

39AALL NPRM Comments at 1–2. 

40 Id. at 2. 

41 86 FR at 16161. 

42 86 FR at 49276. 

43 Id. 

44See, e.g., Ass’n of Am. Univs. NPRM Comments 

at 1; Ass’n of Southeastern Research Libraries, 

Greater Western Library All., & Triangle Research 

Libraries Network (‘‘ASERL, GWLA & TRLN’’) 

NPRM Comments at 1; Univ. Infor. Pol’y Officers 

NPRM Comments at 2–4; LCA NPRM Comments at 

1–3; Univ. of Cal., Berkeley NPRM Comments at 1– 

3; Harvard Library NPRM Comments at 1–3; 

Software Preservation Network NPRM Comments at 

2; Univ. of Mich. Library NPRM Comments at 1– 

2; Univ. of N. Tex. Libraries NPRM Comments at 

1; Niskanen Ctr. NPRM Comments at 3–4; Cornell 

Univ. Library NPRM Comments at 1–2; Univ. of 

N.C., Chapel Hill Univ. Libraries NPRM Comments 

at 1; Kent State Univ. Libraries NPRM Comments 

at 1; Duke Univ. Libraries NPRM Comments at 1– 

2; SPARC NPRM Comments at 1; Univ. of Nebraska 

NPRM Comments at 1; AALL NPRM Comments at 

1; Va. Commonwealth Univ. Libraries NPRM 

Comments at 1–2; Columbia Univ. Libraries NPRM 

Comments at 1; UCLA Library NPRM Comments at 

1–2; SAA NPRM Comments at 1–2; Univ. of Fla. 

Smathers Libraries NPRM Comments at 1; see also 

Fight for the Future NPRM Comments. While one 

commenter voiced their opposition ‘‘to permitting 

pre-emptive opt-outs by individuals who claim to 

be employees of websites responsible for uploading 

infringing material,’’ SFWA NPRM Comments at 3– 

4, it is unclear whether this party is addressing a 

specific circumstance related to libraries or archives 

who provide materials online or to libraries’ and 

archives’ employees, generally. 

45See, e.g., Abby Nafziger NPRM Comments at 1. 

But see, e.g., Abby Adams NPRM Comments at 1 

(omitting this claim from an otherwise substantially 

similar comment). 

46See id. at 1–2 (stating that agency law does not 

prohibit a principal from taking action on behalf of 

an agent, so extending the preemptive opt out to 

employees is not inconsistent with agency law); 

Ass’n of Am. Univs. NPRM Comments at 1 (stating 

that the inclusion of employees would be consistent 

with agency law principles ‘‘[i]n accordance with 

current law’’); Univ. Infor. Pol’y Officers NPRM 

Comments at 3. 

47See Univ. Infor. Pol’y Officers NPRM 

Comments at 3; LCA NPRM Comments at 1–2; 

Univ. of Cal. Libraries NPRM Comments at 2–3; 

Software Preservation Network NPRM Comments at 

2. 

48Univ. Infor. Pol’y Officers NPRM Comments at 

3 (citing 2 Restatement (Third) of Agency at 122). 

archives in advance of the CCB 

beginning operations, and new opt-out 

elections should be available on the optout list as soon as feasible after receipt. 

Where a prospective claimant is 

concerned that a library or archives may 

have submitted an opt-out election that 

has not yet posted on the CCB’s website, 

that claimant is encouraged to contact 

the CCB before submitting its claim to 

inquire whether the entity has 

submitted a form that has not yet been 

processed. 

If a library or archives intends to opt 

out of a pending claim and also submit 

a preemptive opt-out for future claims, 

it should file both a proceeding-specific 

opt-out election and a preemptive optout election. 

C. Transparency and Public Content 

The NPRM reflected the Office’s 

agreement with commenters who 

suggested that ‘‘the list of libraries and 

archives that have preemptively opted 

out of participating in CCB proceedings 

should be made publicly available 

online.’’ 36 Responding to the NPRM, 

parties commented that this information 

should be made available as soon as 

possible after being received.37 The 

Niskanen Center further suggested 

allowing users to view the entire opt-out 

list or to allow users to search the list 

‘‘by state, locality, type of institution 

(e.g. library or archive), and name.’’ 38

AALL suggested that the Office include 

more information ‘‘geared toward 

potential respondents,’’ which would 

help law librarians and legal 

information professionals learn about 

the opt-out provision and their rights 

and responsibilities with the CCB.39

AALL also offered ‘‘to collaborate with 

the Copyright Office on a webinar or 

other educational programs and 

resources about the CCB geared toward 

law librarians and legal information 

professionals.’’ 40

Although these comments do not 

require amendments to the proposed 

rule, the Office can confirm that the 

initial opt-out list will be posted in 

Portable Document Format (‘‘PDF’’), and 

will be updated as soon as feasible after 

receipt and approval of preemptive optout requests. While the PDF will be 

generally searchable, the Office hopes to 

add additional search functionality in 

any future technology updates. The 

Office also confirms that there will be 

information provided on its website and 

on the CCB website, when it launches, 

directed at libraries and archives 

regarding the availability and impact of 

the preemptive opt-out. Finally, the 

Office and CCB welcome collaboration 

on CCB-related outreach from all 

interested parties. 

D. Application of the Opt-Out Provision 

to Persons Acting in the Course of Their 

Employment 

The CASE Act is silent on whether a 

library’s or archives’ preemptive opt-out 

election would apply to those entities’ 

employees acting within the scope of 

their employment. In its NOI, the Office 

asked whether it ‘‘should include a 

regulatory provision that specifies that 

this opt out extends to employees 

operating in the course of their 

employment.’’ 41 Those representing 

libraries and archives supported such a 

rule, while other commenters were 

opposed. The NPRM as issued did not 

include a provision to extend a 

preemptive opt-out election to libraries’ 

or archives’ employees. 

In initially declining to include such 

a provision, the Office made two 

observations. The first was that under 

agency law, ‘‘[u]nless an applicable 

statute provides otherwise, an actor 

remains subject to liability although the 

actor acts as an agent or an employee, 

with actual or apparent authority, or 

within the scope of employment.’’ 42

The second observation was that ‘‘the 

CASE Act expressly offers the 

preemptive opt-out option to ‘a library 

or archives,’ but does not mention 

employees.’’ 43

Numerous commenters representing 

libraries or archives responded that the 

final rule should extend a library’s or 

archives’ preemptive opt-out election to 

cover those entities’ employees.44 The 

Office received many similar comments 

from employees of libraries or archives 

stating that these employees ‘‘would be 

unable to perform [their] regular daily 

work for fear of liability if the 

preemptive opt out does not cover 

employees.’’ 45

Other comments in support of 

including a regulatory provision 

addressing employees broadly made 

three legal arguments. The first 

argument responded to the Office’s 

observations regarding agency law and 

generally asserted that including 

employees with a library’s or archives’ 

opt out is consistent with other 

principles of agency law or is not 

inconsistent with agency law.46 In 

particular, commenters noted that under 

agency law, a principal (the library or 

archives) may delegate a privilege (the 

preemptive opt-out election) to an agent 

(their employees).47 University 

Information Policy Officers reasoned 

that, ‘‘[i]f participation in the CASE Act 

adjudication process is akin to liability, 

then the opt[-]out provision in the 

statute is akin to a privilege, and ‘[m]ost 

privileges held by a principal may be 

delegated to an agent.’ ’’ 48 University 

Information Policy Officers further 

argued that an agent whom the principal 

directed to perform an act cannot be 

held liable if a principal cannot be held 

liable for performing the act, even if the 


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49See id. (citing PYCA Indus., Inc. v. Harrison 

Cty. Waste Water Mgmt. Dist., 177 F.3d 351, 378– 

79 (5th Cir. 1999)). 

50Univ. of Cal., Berkeley NPRM Comments at 3 

(emphasis omitted). 

51 Id. 

52UCLA Library NPRM Comments at 1; Univ. 

Infor. Pol’y Officers NPRM Comments at 2; Software 

Preservation Network NPRM Comments at 2. 

53No earlier copyright small claims bill contained 

this provision. See S. 1273, 116th Cong.; H.R. 2426, 

116th Cong.; H.R. 3945, 115th Cong. (2017); H.R. 

6496, 114th Cong. (2016). 

54 17 U.S.C. 1506(aa)(4). 

55 Id. at 108(a), (f)(1). 

56Niskanen Ctr. NPRM Comments at 3–4; Univ. 

of Cal. Libraries NPRM Comments at 2 n.8. 

57 17 U.S.C. 108(h). 

58See, e.g., Univ. Infor. Pol’y Officers NPRM 

Comments at 2–3; LCA NPRM Comments at 2–3; 

Univ. of Cal., Berkeley NPRM Comments at 1; 

Harvard Library NPRM Comments at 2; Software 

Preservation Network NPRM Comments at 2; Univ. 

of Minn. Libraries NPRM Comments at 1; Univ. of 

N. Tex. Libraries NPRM Comments at 1; ASERL, 

GWLA & TRLN NPRM Comments at 1; Niskanen 

Ctr. NPRM Comments at 3–4; Cornell Univ. Library 

NPRM Comments at 1–2; Univ. of N.C., Chapel Hill 

Univ. Libraries NPRM Comments at 1. 

59See, e.g., Harvard Library NPRM Comments at 

2; Univ. of N. Tex. Libraries NPRM Comments at 

1; Univ. of Minn. Libraries NPRM Comments at 2; 

Kent State Univ. Libraries NPRM Comments at 1; 

Univ. of Mich. Library NPRM Comments at 1. 

60Univ. of Mich. Library NPRM Comments at 1. 

61SPARC NPRM Comments at 1; see also Ass’n 

of Am. Univs. NPRM Comments at 1; Univ. of Mich. 

Library NPRM Comments at 1; Univ. of Minn. 

Libraries NPRM Comments at 1; ASERL, GWLA & 

TRLN NPRM Comments at 1; Univ. of Cal. Libraries 

NPRM Comments at 1–2. 

62Univ. of N. Tex. Libraries NPRM Comments at 

1. 

63Niskanen Ctr. NPRM Comments at 4 (quoting 

LCA Reply NOI Comments at 1). 

64 Id. 

65 86 FR at 16157 (quoting 17 U.S.C. 1510(a)(2)(A) 

and H.R. Rep. No. 116–252, at 23 (footnotes 

omitted)). 

agent would have been liable absent this 

privilege.49

It is not clear, however, the extent to 

which the cited agency law principles 

are applicable here. The preemptive optout is not a liability privilege, but rather 

a privilege to preemptively elect to 

decline using an optional tribunal to 

determine a copyright claim, or a 

‘‘jurisdictional privilege.’’ 50 As the 

University of California correctly 

observes, the CASE Act does not 

‘‘create[ ] or waive[ ] tort liability by 

principals or agents.’’ 51 Considering the 

differences between liability privileges 

and jurisdictional privileges, principles 

governing the former may not be 

determinative for the latter. 

The second argument made by 

commenters supporting extending a 

library’s or archives’ opt-out election to 

its employees related to the texts of both 

the CASE Act and the Copyright Act. 

Commenters recognized that the 

libraries’ and archives’ preemptive optout provision does not have any 

associated legislative history,52

including in the Office’s Copyright 

Small Claims policy report, as it was a 

late amendment in the legislative 

process.53 Therefore, they made 

legislative intent arguments based on 

the statutory language itself. 

The CASE Act does not define a 

‘‘library’’ or ‘‘archives’’ as including or 

excluding employees, but applies the 

preemptive opt-out election to ‘‘any 

library or archives, respectively, that 

qualifies for the limitations on exclusive 

rights under section 108.’’ 54

Commenters argued that since section 

108’s limitations include employees,55

the CASE Act’s libraries and archives 

opt-out election should also apply to 

them.56 It is true that some of section 

108’s provisions, namely 108(a), (f)(1), 

and (g), explicitly extend statutory 

exemptions to a library’s or archives’ 

employees, but section 108(h), which 

exempts enforcement of certain display 

or performance rights, does not do so.57

At the same time, the exempted actions 

described in this subsection cannot 

occur without the employees of libraries 

or archives engaging in the described 

conduct at the direction of their 

employers. While not conclusive, in 

light of the above, the treatment of 

employees in section 108 overall weighs 

in favor of extending the preemptive 

opt-out to employees in the CASE Act. 

Finally, commenters made related 

policy arguments that Congress must 

have intended to include employees, 

even though the statutory text is not 

explicit.58 Many noted that libraries and 

archives must act through their 

employees,59 with the University of 

Michigan Library suggesting that ‘‘there 

is no alleged infringement claim against 

a library that cannot also be brought 

against a corresponding library 

employee.’’ 60 Other commenters 

suggested that excluding employees 

from a library’s or archives’ preemptive 

opt-out election would result in those 

libraries and archives becoming 

involved in CCB proceedings on behalf 

of those employees and would 

effectively ‘‘hollow out the important 

intentional protections’’ for libraries and 

archives in both the Copyright Act and 

CASE Act.61 As the University of North 

Texas Libraries observed, ‘‘[e]ven in 

cases where [a claim before the CCB] 

does not move forward or where an 

individual chooses to opt out, the 

employing library will not truly be able 

to opt out of CCB proceedings when 

considerable education and support for 

individual employees is necessary to 

navigate this process.’’ 62 The Niskanen 

Center argued that it would be 

‘‘inconsistent’’ with the CASE Act’s 

intent ‘‘to create a situation where an 

employee’s failure to opt-out might 

result in the library becoming enmeshed 

in the CCB proceeding on behalf of the 

employee’’ 63 and that this would result 

in libraries needing to ‘‘monitor [their] 

employees’ receipt of any claims or rely 

on employees to report claims 

themselves, a burdensome process with 

a high risk of potential error.’’ 64

Upon careful evaluation of the statute 

and the submitted comments, the Office 

is amending the proposed rule to 

include a regulatory provision 

addressing libraries’ and archives’ 

employees. The final rule will apply a 

library’s or archives’ opt-out election to 

both the qualifying entity and its 

employees for activities within the 

employee’s scope of employment. As 

discussed above, neither the statutory 

language nor agency law conclusively 

resolves this issue. The Office therefore 

looks to the underlying intent and 

purpose of the CASE Act as a whole for 

guidance. 

As the Office noted in its March 2021 

NOI, ‘‘the statute and legislative history 

make clear that Congress intended for 

the Office to implement regulations in a 

manner that ‘furthers the goals of the 

Copyright Claims Board’ and establishes 

an ‘efficient, effective, and voluntary’ 

forum for parties to resolve their 

disputes.’’ 65 While excluding 

employees of a library or archives from 

the preemptive opt-out would allow 

employee respondents to make their 

own independent decisions about 

participating in a CCB proceeding, 

commenters have made a persuasive 

argument that a rule that excluded 

employees acting within the scope of 

their employment would be generally 

inconsistent with the section 108 

provisions extending statutory 

exemptions to a library or archive’s 

employees, and that the absence of a 

rule extending the library’s or archives’ 

opt-out to its employees could create 

unnecessary complexity, uncertainty, 

and inefficiency, frustrating Congress’s 

goals in passing the CASE Act. Pursuant 

to its authority under 17 U.S.C. 702 and 

1510(a)(1) and to best reflect the 

statute’s goals in light of the rulemaking 

record, the Office is adopting final 

regulations to address the statutory 

ambiguity with respect to whether the 

library and archives preemptive opt-out 

election applies to employees acting 

within the course of their employment. 

In doing so, the Office is exercising its 

plenary regulatory authority to ‘‘develop 

clear regulations and practices to fairly 

balance the competing interests of 


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66See Nat’l Cable & Telecomms. Ass’n v. Brand 

X internet Servs., 545 U.S. 967, 980 (2005) 

(‘‘[A]mbiguities in the statutes within an agency’s 

jurisdiction to administer are delegations of 

authority to the agency to fill the statutory gap in 

reasonable fashion.’’) (citing Chevron, U.S.A., Inc. v. 

Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). 

67 Kent State University Libraries stated that 

‘‘many state institutions, including in the State of 

Ohio, are legally obligated to represent state 

employees acting in the scope of their 

employment.’’ Kent State Univ. Libraries NPRM 

Comments at 1. 

68 17 U.S.C. 1506(q)(3). 

69 Id. at 1507(b)(2), 1506(q)(3). 

70 86 FR at 49277. 

claimants and respondents,’’ as 

Congress directed.66

Without such a rule, a library or 

archives that decided to preemptively 

opt-out of CCB proceedings could, by 

law or practice,67 be compelled to 

participate in such a proceeding to 

defend an employee who did not timely 

opt out individually. Employees could 

also be placed in a position where they 

had to defend employer-directed actions 

on their own. Further, the practical 

effect of not including employees in the 

opt-out election of the library or 

archives could result in unnecessary 

costs for copyright owners; for example, 

infringement claims that would 

normally be jointly brought against the 

library or archives and its employee 

could end up being brought in two 

venues—federal court and the CCB. The 

Office concludes that it is more 

consistent with Congressional intent 

behind the CASE Act to allow libraries 

and archives to opt out of CCB 

proceedings without their employees 

who acted within the scope of their 

employment being required to file their 

own proceeding-specific opt-out 

elections. 

E. Class Action Opt-Out Elections 

Finally, the rule clarifies the CCB’s 

ability to resolve conflicts between CCB 

proceedings and class action cases 

arising from the same transaction or 

occurrence in which a party before the 

CCB is a class member. If a party in an 

active proceeding ‘‘receives notice of a 

pending or putative class action, arising 

out of the same transaction or 

occurrence’’ as the claim at issue before 

the CCB, the CASE Act requires that 

party to make an affirmative choice 

between two options.68 The party must 

either ‘‘opt out of the class action, in 

accordance with regulations established 

by the Register’’ or ‘‘seek dismissal’’ of 

the CCB proceeding in writing.69 The 

NPRM proposed a 14-day period for a 

party to either opt out of the class action 

and provide notice to the CCB or to seek 

dismissal of the CCB proceeding.70 The 

Office received no comments on this 

portion of the proposed rule and 

promulgates it without amendment. The 

Office realizes that the statute does not 

state what will happen if the party fails 

to adhere to its obligation to make a 

timely election. The Office has therefore 

added a provision clarifying that the 

CCB may take necessary corrective 

action to resolve the conflicting 

proceedings, which may include 

dismissal of the proceeding without 

prejudice or, in circumstances where 

the class action has reached a 

determination on the merits, vacating 

any CCB determination. This provision 

is consistent with the goal of the statute 

to ensure the timely resolution of a 

conflicting proceeding by requiring a 

party to choose to continue with either 

the CCB proceeding or the class action. 

It is also consistent with the CCB’s 

power to control its own proceedings, 

but not federal court class action 

proceedings. 

List of Subjects in 37 CFR Part 223 

Copyright, Claims. 

Final Regulations 

For the reasons set forth in the 

preamble, the Copyright Office amends 

chapter II, subchapter B, of title 37 Code 

of Federal Regulations to read as 

follows: 

CHAPTER II—U.S. COPYRIGHT OFFICE, 

LIBRARY OF CONGRES 

SUBCHAPTER B—COPYRIGHT CLAIMS 

BOARD, LIBRARY OF CONGRESS 

■ 1. Under the authority of 17 U.S.C. 

702, 1510, the heading for subchapter B 

is revised to read as set forth above. 

■ 2. Part 223 is added to read as follows: 

PART 223—OPT-OUT PROVISIONS 

Sec. 

223.1 [Reserved] 

223.2 Libraries and archives opt-out 

procedures. 

223.3 Class action opt-out procedures. 

Authority: 17 U.S.C. 702, 1510. 

§ 223.1 [Reserved] 

§ 223.2 Libraries and archives opt-out 

procedures. 

(a) Opt-out notification. (1) A library 

or archives that wishes to preemptively 

opt out of participating in Copyright 

Claims Board (‘‘Board’’) proceedings 

under 17 U.S.C. 1506(aa) may do so by 

submitting written notification to the 

Board. The notification shall include a 

signed certification under penalty of 

perjury that the library or archives 

qualifies for the limitations on exclusive 

rights under 17 U.S.C. 108 and the 

signatory is authorized to submit the 

form on the library’s or archives’ behalf. 

(2) The submission described in 

paragraph (a)(1) of this section shall list 

the name and physical address of each 

library or archives to which the 

preemptive opt out applies and shall be 

signed by a person with the authority 

described in paragraph (c) of this 

section. The library or archives must 

also provide a point of contact for future 

correspondence, including phone 

number, mailing address, email address, 

and the website for the library or 

archives, if available, and shall notify 

the Board if this information changes. 

(3) The Board will accept the facts 

stated in the submission described in 

paragraphs (a)(1) and (2) of this section, 

unless they are implausible or conflict 

with sources of information that are 

known to the Board or the general 

public. 

(4) If a Federal court determines that 

an entity described in paragraph (a)(1) 

of this section does not qualify for the 

limitations on exclusive rights under 17 

U.S.C. 108, that entity must inform the 

Board of that determination and submit 

a copy of the relevant order or opinion, 

if any, within 14 days after the 

determination is issued. 

(5) An opt-out under this section 

extends to a library’s or archives’ 

employee acting within the scope of 

their employment, but does not apply to 

employees acting outside the scope of 

their employment. 

(6) For the purposes of this section, 

the date that the Board posts the opt-out 

information on its website as described 

in paragraph (b) in this section, after 

receipt, review, and processing of the 

notification described in paragraph 

(a)(1) of this section, will be the 

effective date of a preemptive opt-out 

election, except as noted in paragraph 

(a)(9) of this section. A preemptive optout election would not compel 

dismissal of a claim that the Board has 

found compliant and has instructed the 

claimant to serve prior to the 

preemptive opt-out election’s effective 

date. A respondent who wishes to opt 

out of such a claim should follow the 

directions provided in the served notice 

of proceeding. 

(7) A library or archives may rescind 

its preemptive opt-out election under 

this section, such that it may participate 

in Board proceedings, by providing 

written notification to the Board in 

accordance with such instructions as are 

provided on the Board’s website. A 

library or archives may submit no more 

than one such rescission notification per 

calendar year. 

(8) The notification described in 

paragraph (a)(1) of this section shall be 

submitted to the Board in accordance 


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with such instructions as are provided 

on the Board’s website. 

(9) A blanket opt-out filed by a library 

or archives in accordance with this 

section before April 8, 2022 will become 

effective on that date. 

(b) Review of eligibility. (1) The Board 

will maintain on its website a public list 

of libraries and archives that have 

preemptively opted out of Board 

proceedings pursuant to paragraph (a) of 

this section. If the Register determines 

pursuant to paragraph (a)(3) of this 

section that an entity does not qualify 

for the preemptive opt-out provision, 

the Office will communicate to the 

point of contact described in paragraph 

(a)(2) of this section that it does not 

intend to add the entity to the public 

list, or that it intends to remove the 

entity from that list, and will allow the 

entity to provide evidence supporting 

its qualification for the exemption 

within 30 days. If the entity fails to 

respond, or if, after reviewing the 

entity’s response, the Register 

determines that the entity does not 

qualify for the limitations on exclusive 

rights under section 108 of title 17, the 

entity will not be added to, or will be 

removed from, the public list. If the 

Register determines that the entity 

qualifies for the limitations on exclusive 

rights under 17 U.S.C. 108, the entity 

will be added to, or remain on, the 

libraries and archives preemptive optout list. This provision does not limit 

the Office’s ability to request additional 

information from the point of contact 

listed pursuant to paragraph (a)(2) of 

this section. Any determination by the 

Register regarding an entity’s qualifying 

status for the limitations on exclusive 

rights under 17 U.S.C. 108 is solely for 

the purpose of determining whether the 

entity qualifies for the preemptive opt 

out under 17 U.S.C. 1506(aa) and does 

not constitute a legal conclusion for any 

other purpose. 

(2) A claimant seeking to assert a 

claim under this section against a 

library or archives, or an employee 

thereof acting within the scope of their 

employment, that it believes is 

improperly included on the public list 

described in paragraph (b)(1) of this 

section may file the claim with the 

Board pursuant to 17 U.S.C. 1506(e) and 

applicable regulations. The claimant 

must include in its statement of material 

facts allegations sufficient to support 

that belief. If the Board concludes, as 

part of its review of the claim pursuant 

to 17 U.S.C. 1506(f), that the claimant 

has alleged facts sufficient to support 

the conclusion that the library or 

archives is ineligible for the preemptive 

opt-out, and the Register agrees, the 

library or archives will be given an 

opportunity to provide evidence 

supporting its qualification for the 

exemption pursuant to paragraph (a)(1) 

of this section. If the Register concludes 

that evidence submitted by the library 

or archives supports its qualification for 

the exemption, the library or archives 

will remain on the list and the 

associated allegations by the claimant 

will be stricken. After these allegations 

are stricken, if the claim includes other 

respondents and is otherwise complaint, 

the claimant will be instructed to 

proceed with service of the claim 

against the remaining respondents. 

Alternatively, if the Register concludes 

that the library or archives has not 

provided evidence to support its 

qualification for the exemption, the 

library or archives will be removed from 

the blanket opt-out list. The claim will 

then be reviewed for compliance and, if 

found to be compliant, the claimant will 

be instructed to proceed with service of 

the claim. 

(3) Any determination made under 

paragraph (b)(1) of this section shall 

constitute final agency action under 5 

U.S.C. 704. 

(c) Authority. Any person with the 

authority to take legally binding actions 

on behalf of a library or archives in 

connection with litigation may submit a 

notification under paragraph (a) of this 

section. 

(d) Multiple libraries and archives in 

a single submission. A notification 

under paragraph (a) of this section may 

include multiple libraries or archives in 

the same submission if each library or 

archives is listed separately in the 

submission and the submitter has the 

authority described under paragraph (c) 

of this section to submit the notification 

on behalf of all libraries and archives 

included in the submission. 

§ 223.3 Class action opt-out procedures. 

(a) Opt-out or dismissal procedures. 

Any party to an active proceeding before 

the Copyright Claims Board (‘‘Board’’) 

who receives notice of a pending or 

putative class action, arising out of the 

same transaction or occurrence as the 

proceeding before the Board, in which 

the party is a class member, shall either 

opt out of the class action or seek 

written dismissal of the proceeding 

before Board within 14 days of receiving 

notice of the pending class action. If a 

party seeks written dismissal of the 

proceeding before the Board, upon 

notice to all claimants and 

counterclaimants, the Board shall 

dismiss the proceeding without 

prejudice. 

(b) Filing requirement. A copy of the 

notice indicating a party’s intent to opt 

out of a class action proceeding must be 

filed with the Board within 14 days after 

the filing of the notice with the court. 

(c) Timing. The time periods provided 

in paragraphs (a) and (b) of this section 

may be extended by the Board for good 

cause shown. 

(d) Failure to notify Board. If a party 

fails to make a timely election under 

paragraph (a) of this section, the Board 

is authorized to take corrective action as 

it deems necessary, which may include 

dismissal of a pending claim before the 

Board with or without prejudice, 

notifying the class action court of any 

final determination by the Board, or 

vacating a final determination of the 

Board. The Board may, in its discretion, 

direct a party to show cause why action 

under paragraph (a) of this section was 

not taken. 

Dated: February 28, 2022. 

Shira Perlmutter, 

Register of Copyrights and Director of the 

U.S. Copyright Office. 

Approved by: 

Carla D. Hayden, 

Librarian of Congress. 

[FR Doc. 2022–04747 Filed 3–8–22; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2020–0446; FRL–9398–02– 

R4] 

Air Plan Approval; KY; Jefferson 

County Emissions Statements 

Requirements for the 2015 8-Hour 

Ozone Standard Nonattainment Area 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is finalizing approval of 

a State Implementation Plan (SIP) 

revision to the Jefferson County portion 

of the Kentucky SIP submitted by the 

Commonwealth of Kentucky through 

the Kentucky Division for Air Quality 

(KDAQ) to EPA on August 12, 2020. The 

SIP revision was submitted by KDAQ on 

behalf of the Louisville Metro Air 

Pollution Control District (LMAPCD) to 

address the emissions statement 

requirements for the 2015 8-hour ozone 

national ambient air quality standards 

(NAAQS) for the Jefferson County 

portion of the Louisville, Kentucky 2015 

8-hour ozone nonattainment area 

(hereinafter referred to as ‘‘Jefferson 

County’’). Jefferson County is part of the 

Kentucky portion of the Louisville, 

Kentucky-Indiana 2015 8-hour ozone 


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