PART 223—OPT-OUT PROVISIONS Authority: 17 U.S.C. 702, 1510. Source: 87 FR 13176, Mar. 9, 2022, unless otherwise noted. § 223.1 Respondent's opt-out. (a) Effect of opt-out on particular proceeding. (b) Content of opt-out notification. (1) The docket number assigned by the Board and contained in either the initial notice second notice; (2) The respondent's name; (3) The respondent's mailing address; (4) An affirmation that the respondent shall not appear before the Board with respect to the claim served by the claimant; (5) A certification under penalty of perjury that the individual completing the notification is the respondent identified in the claim served by the claimant or is the legal counsel or authorized representative (6) The typed, printed, or handwritten signature of the respondent or its legal counsel or authorized representative, (c) Process of opting out. (1) Completing and submitting the Board's online opt-out notification form available through the Board's electronic filing system (eCCB) as identified in the initial notice second notice (2) Completing and submitting the paper opt-out notification form included with the initial notice second notice, (i) First-class mail, or other class of mail that is at least as expeditious, postage prepaid; or (ii) A third party commercial carrier, that guarantees delivery no later than two days from the day of deposit with the service. (3) An online or paper opt-out notification is not complete unless the confirmation code, provided with both the initial notice second notice, (d) Effect of improper service. (e) Timing of opt out. (1) When opting out via the online form under paragraph (c)(1) of this section, the respondent's opt-out notification must be submitted by 11:59 p.m. Eastern Time on the last day of the opt-out period. (2) When opting out under paragraph (c)(2) of this section, the respondent's opt-out notification must be postmarked, dispatched by a commercial carrier, courier, or messenger, or hand-delivered to the Office no later than the 60-day deadline. (f) Extension of opt-out period. (g) Multiple respondents. (h) Confirmation of opt-out. (i) Effect of opt out on refiled claims. (j) Effect of opt-out on unrelated claims. [87 FR 17007, Mar. 25, 2022] § 223.2 Libraries and archives opt-out procedures. (a) Opt-out notification. (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 opt-out 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 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. (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. (d) Multiple libraries and archives in a single submission. § 223.3 Class action opt-out procedures. (a) Opt-out or dismissal procedures. (b) Filing requirement. (c) Timing. (d) Failure to notify Board.