Rule2023-11299
Secure Tests
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 1, 2023
Effective
June 1, 2023
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
The U.S. Copyright Office is issuing an interim rule amending its regulations governing the registration of copyright claims in secure tests to continue the current rule that was adopted to address the national emergency caused by the COVID-19 pandemic. The Office has decided to continue allowing otherwise-eligible tests that were administered online during the national emergency to qualify as secure tests, provided the test administrator employs sufficient security measures. The Office is also continuing its procedure allowing examination of secure test claims via secure teleconference. Finally, the Office is requesting public comment whether the interim rule should be made permanent and whether it should restrict examinations of secure test claims to virtual examinations.
Full Text
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<title>Federal Register, Volume 88 Issue 105 (Thursday, June 1, 2023)</title>
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[Federal Register Volume 88, Number 105 (Thursday, June 1, 2023)]
[Rules and Regulations]
[Pages 35741-35743]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-11299]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. 2017-8]
Secure Tests
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Interim rule with request for comments.
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SUMMARY: The U.S. Copyright Office is issuing an interim rule amending
its regulations governing the registration of copyright claims in
secure tests to continue the current rule that was adopted to address
the national emergency caused by the COVID-19 pandemic. The Office has
decided to continue allowing otherwise-eligible tests that were
administered online during the national emergency to qualify as secure
tests, provided the test administrator employs sufficient security
measures. The Office is also continuing its procedure allowing
examination of secure test claims via secure teleconference. Finally,
the Office is requesting public comment whether the interim rule should
be made permanent and whether it should restrict examinations of secure
test claims to virtual examinations.
DATES: Effective June 1, 2023. Comments must be made in writing and
must be received by the U.S. Copyright Office no later than July 3,
2023.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="https://copyright.gov/rulemaking/securetests">https://copyright.gov/rulemaking/securetests</a>. If electronic
submission of comments is not feasible due to lack of access to a
computer and/or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Suzanne V. Wilson, General Counsel and
Associate Register of Copyrights, <a href="/cdn-cgi/l/email-protection#473431302e2b342829072428373e352e202f3369202831"><span class="__cf_email__" data-cfemail="146762637d78677b7a54777b646d667d737c603a737b62">[email protected]</span></a>; Robert J.
Kasunic, Associate Register of Copyrights and Director of Registration
Policy and Practice, <a href="/cdn-cgi/l/email-protection#c7b5aca6b487a4a8b7beb5aea0afb3e9a0a8b1"><span class="__cf_email__" data-cfemail="83f1e8e2f0c3e0ecf3faf1eae4ebf7ade4ecf5">[email protected]</span></a>; or David Welkowitz, Attorney
Advisor, <a href="/cdn-cgi/l/email-protection#a9cddeccc5c2c6dec0ddd3e9cac6d9d0dbc0cec1dd87cec6df"><span class="__cf_email__" data-cfemail="2d495a484146425a4459576d4e425d545f444a4559034a425b">[email protected]</span></a>. They can be reached by telephone at
202-707-3000.
SUPPLEMENTARY INFORMATION:
I. Background
Under Section 408 of the Copyright Act (the ``Act''), the U.S.
Copyright Office is responsible for registering copyright claims.\1\ In
so doing, the Office is obligated to obtain registration deposits that
are sufficient to verify the claims and to provide an archival record
of what was examined and registered.\2\ During their term of retention,
deposits are available through the Office for public inspection.\3\ The
Act, however, authorizes the Office to issue regulations establishing
``the nature of the copies . . . to be deposited'' in specific classes
of works and to ``permit, for particular classes, the deposit of
identifying material instead of copies or phonorecords.'' \4\
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\1\ 17 U.S.C. 408.
\2\ Id. 408(b), 705(a).
\3\ Id. 705.
\4\ Id. 408(c)(1).
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Pursuant to that authority, the Office has long provided special
registration procedures for ``secure tests'' that require the
maintenance of confidentiality. These include tests ``used in
connection with admission to educational institutions, high school
equivalency, placement in or credit for undergraduate and graduate
course work, awarding of scholarships, and
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professional certification.'' \5\ Current regulations define a secure
test as ``a nonmarketed test administered under supervision at
specified centers on scheduled dates, all copies of which are accounted
for and either destroyed or returned to restricted locked storage or
secure electronic storage following each administration.'' \6\
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\5\ 42 FR 59302, 59304 & n.1 (Nov. 16, 1977); see also 43 FR
763, 768 (Jan. 4, 1978) (adopting the definition of a secure test).
\6\ 37 CFR 202.13(b)(1).
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Recognizing the confidential nature of secure tests and that the
availability of deposits through public inspection could undercut their
utility, the Office has had special procedures for examining secure
tests since 1978.\7\ In June 2017, the Office issued an interim rule
(the ``June 2017 Interim Rule'') that memorialized certain aspects of
its secure test examination procedure and adopted new processes to
increase the efficiency of the examination of such works.\8\ Under this
rule, much of which remains operable today, applicants must, among
other things, submit an online application, a redacted copy of the
entire test, and a brief questionnaire about the test through the
electronic registration system.\9\ This procedure allows the Office to
prescreen an application to determine whether the work appears to be
eligible for registration as a secure test. If the test appears to
qualify, the Office will schedule an in-person appointment, or, under
the current regulations, a secure videoconference,\10\ for examination
of an unredacted copy.\11\
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\7\ 37 CFR 202.20(b)(4), (c)(2)(vi) (1978); see 43 FR at 768-69
(adopting secure test rules).
\8\ 82 FR 26850 (June 12, 2017); see 37 CFR 202.13,
202.20(b)(3), (c)(2)(vi) (implementing the June 2017 Interim Rule).
\9\ 37 CFR 202.13(c)(2).
\10\ As discussed below, the Office began using secure
videoconferences for examinations in 2021.
\11\ Id.
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Under the June 2017 Interim Rule, the examiner will review the
redacted and unredacted copies in a secure location or via secure
teleconference in the presence of the applicant or the applicant's
representative.\12\ If the examiner determines that the relevant legal
and formal requirements have been met, he or she will register the
claim(s) and add an annotation to the certificate reflecting that the
work was examined under the secure test procedure. The regulation
provides that the registration is effective as of the date that the
Office received in proper form the application, questionnaire, filing
fee, and the redacted copy that was uploaded to the electronic
registration system, rather than the later date when the in-person
examination takes place.\13\
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\12\ The applicant must bring to the meeting, among other
materials, a signed declaration confirming that the redacted copy
brought to the meeting is identical to the redacted copy that was
uploaded to the electronic registration system. Id.
202.13(c)(3)(iv).
\13\ 82 FR at 26853.
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On November 13, 2017, in response to concerns raised by
stakeholders following the June 2017 Interim Rule, the Office issued a
second interim rule (the ``November 2017 Interim Rule'') to permit
registration of a group of test items (i.e., sets of questions and
answers) stored in a database or test bank and used to create secure
tests.\14\ For these works, the November 2017 Interim Rule adopted most
of the same registration procedures that apply to secure tests under
the June 2017 Interim Rule.
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\14\ 82 FR 52224 (Nov. 13, 2017). See 37 CFR 202.4(b), (k),
202.13 (2018) (implementing the November 2017 Interim Rule).
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On March 13, 2020, the President issued a proclamation declaring
the COVID-19 outbreak in the United States a national emergency.\15\ In
response to the COVID-19 national emergency, the Office issued a third
interim rule in May 2020 (the ``May 2020 Interim Rule''), which amended
the definition of secure tests to include those tests administered
securely online during the national emergency, rather than in person,
under certain conditions: (1) the test must otherwise meet the criteria
for secure tests; (2) the test must have been administered at specified
centers before the COVID-19 emergency; and (3) the administration of
the test must be supervised in a manner equivalent to in-person
proctoring.\16\
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\15\ Proclamation No. 9994 of March 13, 2020, 85 FR 15337 (March
18, 2020).
\16\ 85 FR 27296 (May 8, 2020). See 37 CFR 202.13(b)(1) (2020)
(implementing the May 2020 Interim Rule). The Office also invited
comments ``on the technological requirements needed for examination
of secure test claims via secure teleconference.'' The Office
received five comments in response. The public comments may be
accessed at <a href="https://www.copyright.gov/rulemaking/securetests/">https://www.copyright.gov/rulemaking/securetests/</a>.
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Finally, in February 2021, again in response to the continuing
national emergency, the Office issued a fourth interim rule (the
``February 2021 Interim Rule''), permitting the examination of secure
test copyright applications by secure videoconference.\17\
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\17\ 86 FR 10174 (Feb. 19, 2021). See 37 CFR 202.13(c)(2) (2021)
(implementing the February 2021 Interim Rule).
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II. Current Interim Rule
While the Office is continuing to evaluate the secure tests
regulations as a whole to determine if changes may be warranted before
issuing a final rule, it is issuing an additional interim rule at this
time to address the recent end of the declared national COVID-19
emergency. This interim rule is necessary because the May 2020 Interim
Rule specifically limited its scope to a test that ``is being
administered online during the national emergency concerning the COVID-
19 pandemic.'' \18\ On April 10, 2023, the President signed a bill
ending the national emergency that had been declared on March 13,
2020.\19\
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\18\ 37 CFR 202.13(b)(1). The preamble to the May 2020 Interim
Rule similarly stated that ``the modification of the definition of
secure tests is temporary, lasting only until the COVID-19 emergency
ends.'' 85 FR at 27298.
\19\ Public Law 118-3 (Apr. 10, 2023). The public health
emergency declaration remains in effect until May 11, 2023. See
<a href="https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html">https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html</a>.
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The Office's experience with the May 2020 Interim Rule has been
positive. That rule provided test administrators who previously
administered secure tests at specified centers the flexibility to
register these works with the secure test accommodation, even if the
tests were administered online during the COVID emergency instead of in
person. The Office has concluded that these test administrators should
have the option to continue to use the secure test accommodation after
the end of the declared emergency while the Office evaluates whether,
and in what form, to include remotely administered tests permanently in
the rule. The Office has not placed a specific time limit on the
interim rule because it would like to have sufficient time both to
evaluate the use of this rule and to assess how to integrate it into
the Office's ongoing modernization of the registration process.
The February 2021 Interim Rule allowing remote examination of
secure test claims is not affected by the end of the national COVID-19
emergency. Although that rule was issued in the wake of the pandemic,
its language did not limit its use to a time period circumscribed by
the pandemic. The Office's experience with the February 2021 Interim
Rule has been positive. All secure test applicants have switched to
remote examination. This procedure is proving to be more cost effective
for applicants and is more efficient for the Office. Therefore, the
interim rule does not make any changes to the current process.
The new interim rule maintains a clarifying change related to the
storage of secure tests that was implemented in the May 2020 Interim
Rule. Prior to that rule, the regulatory language required all copies
of a secure test to be ``either destroyed or returned to restricted
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locked storage following each administration.'' \20\ To make clear that
this provision does not preclude the retention of digital copies, the
May 2020 Interim Rule provided that copies also may be returned to
``secure electronic storage.'' The new interim rule makes no change to
that language.
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\20\ 37 CFR 202.13(b)(1).
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This interim rule should not be seen as determinative of the final
rule in this proceeding, which will be established on the basis of the
overall rulemaking record. The Office recognizes, as it has previously,
that the ``specified centers'' limitation was a concern for many test
publishers even before the COVID-19 emergency, with several commenters
to prior interim rules urging the Office to amend that language to
facilitate a broader range of testing models.\21\ The Office therefore
will continue to monitor the operation of the interim rule as it
evaluates whether and under what conditions remote testing should be
permitted under the final rule addressing secure tests.
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\21\ In response to the May 2020 Interim Rule, two commenters
urged the Office to include remote testing in the definition of
secure tests beyond the end of the pandemic. Association of Test
Publishers Comments at 2 (June 8, 2020); National College Testing
Association Comments at 3-6 (June 8, 2020).
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In light of the end of the national COVID-19 emergency, and its
positive experience with current secure test registration rules, the
Copyright Office finds good cause to publish these amendments as an
interim rule effective immediately, and without first publishing a
notice of proposed rulemaking. The rule merely maintains the status quo
and the expiration of the national emergency designation could
otherwise create uncertainty related to the status of the procedures in
the May 2020 Interim Rule.\22\
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\22\ H.R. Rep. No. 1980, 79th Cong., 2d Sess. 26 (1946). See 5
U.S.C. 553(b)(3)(B) (notice and comment is not necessary upon agency
determination that it would be ``impracticable, unnecessary, or
contrary to the public interest''); id. at 553(d)(3) (30-day notice
not required where agency finds good cause).
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III. Request for Comments
The Office invites comments regarding the continuation,
modification, or possible expansion of the interim rule, particularly
as it relates to online testing. The Office also invites comments on
the desirability of eliminating in-person examinations and conducting
only remote examinations of secure tests.
List of Subjects in 37 CFR Part 202
Claims, Copyright, Registration.
For the reasons set forth in the preamble, the Copyright Office
amends 37 CFR part 202 as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
2. Amend Sec. 202.13 by revising paragraph (b)(1) to read as follows:
Sec. 202.13 Secure tests.
* * * * *
(b) * * *
(1) A secure test is a nonmarketed test administered under
supervision at specified centers on scheduled dates, all copies of
which are accounted for and either destroyed or returned to restricted
locked storage or secure electronic storage following each
administration. A test otherwise meeting the requirements of this
paragraph shall be considered a secure test if it was normally
administered at specified centers prior to May 8, 2020, but is now
being administered online, provided the test administrator employs
measures to maintain the security and integrity of the test that it
reasonably determines to be substantially equivalent to the security
and integrity provided by in-person proctors.
* * * * *
Dated: May 11, 2023.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2023-11299 Filed 5-31-23; 8:45 am]
BILLING CODE 1410-30-P
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