Secure Tests, 27296-27299 [2020-09916]
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27296
Federal Register / Vol. 85, No. 90 / Friday, May 8, 2020 / Rules and Regulations
Group, Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX
76177; telephone (817) 222–5711.
SUPPLEMENTARY INFORMATION:
Authority for This Rulemaking
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the United States Code.
Subtitle I, Section 106 describes the
authority of the FAA Administrator.
Subtitle VII, Aviation Programs,
describes in more detail the scope of the
agency’s authority. This rulemaking is
promulgated under the authority
described in Subtitle VII, Part A,
Subpart I, Section 40103. Under that
section, the FAA is charged with
prescribing regulations to assign the use
of airspace necessary to ensure the
safety of aircraft and the efficient use of
airspace. This regulation is within the
scope of that authority as it amends the
Class E airspace extending upward from
700 feet above the surface at RobenHood Airport, Big Rapids, MI, to
support IFR operations at this airport.
History
The FAA published a notice of
proposed rulemaking in the Federal
Register (85 FR 11005; February 26,
2020) for Docket No. FAA–2020–0142 to
amend the Class E airspace extending
upward from 700 feet above the surface
at Roben-Hood Airport, Big Rapids, MI.
Interested parties were invited to
participate in this rulemaking effort by
submitting written comments on the
proposal to the FAA. No comments
were received.
Class E airspace designations are
published in paragraph 6005 of FAA
Order 7400.11D, dated August 8, 2019,
and effective September 15, 2019, which
is incorporated by reference in 14 CFR
71.1. The Class E airspace designations
listed in this document will be
published subsequently in the Order.
Availability and Summary of
Documents for Incorporation by
Reference
This document amends FAA Order
7400.11D, Airspace Designations and
Reporting Points, dated August 8, 2019,
and effective September 15, 2019. FAA
Order 7400.11D is publicly available as
listed in the ADDRESSES section of this
document. FAA Order 7400.11D lists
Class A, B, C, D, and E airspace areas,
air traffic service routes, and reporting
points.
The Rule
This amendment to Title 14 Code of
Federal Regulations (14 CFR) part 71 by
amending the Class E airspace
extending upward from 700 feet above
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15:57 May 07, 2020
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the surface within a 6.6-mile radius
(decreased from a 6.7-mile radius) of
Roben-Hood Airport, Big Rapids, MI;
removing the White Cloud VORTAC
and associated extensions from the
airspace legal description; and updating
the geographic coordinates of the airport
to coincide with the FAA’s aeronautic
database.
This action is the result of an airspace
review caused by the cancellation and
revision of the instrument procedures at
this airport.
FAA Order 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
regulation only involves an established
body of technical regulations for which
frequent and routine amendments are
necessary to keep them operationally
current, is non-controversial and
unlikely to result in adverse or negative
comments. It, therefore: (1) Is not a
‘‘significant regulatory action’’ under
Executive Order 12866; (2) is not a
‘‘significant rule’’ under DOT
Regulatory Policies and Procedures (44
FR 11034; February 26, 1979); and (3)
does not warrant preparation of a
regulatory evaluation as the anticipated
impact is so minimal. Since this is a
routine matter that only affects air traffic
procedures and air navigation, it is
certified that this rule, when
promulgated, does not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1F, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 5–6.5.a. This airspace action
is not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant preparation of an
environmental assessment.
Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
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1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order 7400.11D,
Airspace Designations and Reporting
Points, dated August 8, 2019, and
effective September 15, 2019, is
amended as follows:
■
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
*
*
*
*
*
AGL MI E5 Big Rapids, MI [Amended]
Roben-Hood Airport, MI
(Lat. 43°43′22″ N, long. 85°30′15″ W)
That airspace extending upward from 700
feet above the surface within a 6.6-mile
radius of Roben-Hood Airport.
Issued in Fort Worth, Texas, on May 4,
2020.
Steven T. Phillips,
Acting Manager, Operations Support Group,
ATO Central Service Center.
[FR Doc. 2020–09820 Filed 5–7–20; 8:45 am]
BILLING CODE 4910–13–P
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 202
[Docket No. 2017–8]
Environmental Review
PO 00000
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
Secure Tests
U.S. Copyright Office, Library
of Congress.
ACTION: Interim rule with request for
comments.
AGENCY:
The U.S. Copyright Office is
issuing an interim rule amending its
regulations governing the registration of
copyright claims in secure tests in order
to address a disruption caused by the
COVID–19 pandemic. The Office has
become aware that certain examinations
that normally would qualify for
registration as secure tests may be
ineligible for this option because they
currently are being administered
remotely rather than at specified testing
centers. The interim rule allows
otherwise-eligible tests that are
administered online during the national
emergency to qualify as secure tests,
SUMMARY:
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Federal Register / Vol. 85, No. 90 / Friday, May 8, 2020 / Rules and Regulations
provided the test administrator employs
sufficient security measures. In
addition, the Office is requesting public
comment on the technological
requirements needed for examination of
secure test claims via secure
teleconference. Finally, the Office is
announcing its intention to issue
guidelines according to which parties
may request ex parte meetings with the
Office in this proceeding.
DATES: Effective May 8, 2020. Comments
must be made in writing and must be
received by the U.S. Copyright Office no
later than June 8, 2020.
ADDRESSES: For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
copyright.gov/rulemaking/securetests. 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:
Regan A. Smith, General Counsel and
Associate Register of Copyrights,
regans@copyright.gov; Robert J. Kasunic,
Associate Register of Copyrights and
Director of Registration Policy and
Practice, rkas@copyright.gov; Kevin R.
Amer, Deputy General Counsel, kamer@
copyright.gov; or David Welkowitz,
Attorney Advisor, dwelkowitz@
copyright.gov. They can be reached by
telephone at 202–707–3000.
SUPPLEMENTARY INFORMATION:
I. Background
Under Section 408 of the Copyright
Act, the U.S. Copyright Office is
responsible for registering copyright
claims.1 In so doing, the Office is
obligated to obtain a registration deposit
that is sufficient to verify the claim and
to provide an archival record of what
was examined and registered.2 Deposits
of unpublished material must be kept
for the full term of copyright
protection,3 and deposits are available
for public inspection.4 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,
1 17
U.S.C. 408.
408(b), 705(a).
3 Id. 704(d).
4 Id. 705(b).
2 Id.
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for particular classes, the deposit of
identifying material instead of copies or
phonorecords.’’ 5
Pursuant to that authority, the Office
has long provided special registration
procedures for ‘‘secure tests’’ that
require the maintenance of
confidentiality of their contents. 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 professional certification.’’ 6 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
following each administration.’’ 7
On June 12, 2017, the Office issued an
interim rule (the ‘‘June 2017 Interim
Rule’’) that memorialized certain
aspects of its secure test procedure and
adopted new processes to increase the
efficiency of its examination of such
works.8 Under this rule, 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 for
examination of an unredacted copy of
the test.10
During the in-person meeting, the
examiner will review the redacted and
unredacted copies in a secure location
in the presence of the applicant or his/
her representative.11 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 registration is
effective as of the date that the Office
received in proper form the application,
5 Id.
408(c)(1).
FR 59302, 59304 & n.1 (Nov. 16, 1977); see
also 43 FR 763, 768 (Jan. 4, 1978) (adopting the
definition of a secure test).
7 37 CFR 202.13(b)(1).
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 Id.
11 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).
6 42
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27297
questionnaire, filing fee, and the
redacted copy that was uploaded to the
electronic registration system.12 The
June 2017 Interim Rule thus gives
publishers the benefit of establishing as
their effective date of registration the
date when those materials are submitted
to and received by the Office
electronically, rather than the later date
when the in-person examination takes
place.
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.13
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.
The Office invited public comment on
both the June 2017 and the November
2017 Interim Rules. The Office received
a total of thirty-nine responses from a
wide variety of testing organizations and
other interested parties.14
II. The Interim Rule
While the Office is continuing to
evaluate the secure tests regulations as
a whole to determine whether changes
may be warranted before issuing a final
rule, it is issuing an additional interim
rule at this time to address a specific
disruption currently affecting test
publishers’ ability to exercise this
option. The Office has become aware
that, as a result of the COVID–19
pandemic, certain tests that normally
are administered with test-takers
physically assembled at one or more
locations will instead be administered
remotely, with test-takers completing
the exam online from their homes.
Publishers have expressed concern that
this change may make the tests
ineligible for registration as secure tests,
as they will not be administered ‘‘at
specified centers.’’ 15 As a result, these
publishers may be forced to choose
between registering their tests under the
normal procedure for literary works
(thus forfeiting confidentiality) and
either delaying registration until they
can administer the test according to the
existing rule or foregoing copyright
12 82
FR at 26853.
FR 52224 (Nov. 13, 2017). See 37 CFR
202.4(b), (k), 202.13 (implementing the November
2017 Interim Rule).
14 The public comments in this proceeding may
be accessed from the Office’s website at https://
www.copyright.gov/rulemaking/securetests/.
15 37 CFR 202.13(b)(1).
13 82
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Federal Register / Vol. 85, No. 90 / Friday, May 8, 2020 / Rules and Regulations
registration altogether. If a publisher
chooses to delay registration, it could
lose the benefit of an earlier effective
date of registration. Although the
building that houses the Copyright
Office is currently closed to the public
and therefore staff are unable to conduct
in-person examinations or issue
registrations for secure tests, as noted
above, an eligible secure test publisher
can establish an effective date of
registration during this time by
electronically submitting an application,
questionnaire, filing fee, and redacted
copy to the Office.16
The interim rule amends the
regulations to provide an
accommodation for tests that would be
eligible for secure test registration but
for the pandemic. The rule provides that
an otherwise-qualifying test shall be
considered a secure test if it normally is
administered at specified centers but is
being administered online during the
national emergency, 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 inperson proctors. The rule does not
specify particular measures that are
required to meet this standard, as the
Office believes that publishers generally
should have flexibility to tailor such
processes to their specific needs. But as
examples, the Office expects that
sufficient measures typically would
include some combination of video
monitoring and/or recording, the
disabling of certain functions on testtakers’ computers (e.g., copying and
pasting), technological measures to
prevent access to external websites and
other prohibited materials, and identity
verification of the individual taking the
test. It also should be noted that the
interim rule does not alter the
requirement that a secure test be
administered ‘‘under supervision,’’
which means that ‘‘test proctors or the
equivalent supervise the administration
of the test.’’ 17
The rule also makes a clarifying
change to the portion of the definition
concerning the storage of secure tests.
The current language requires all copies
of a secure test to be ‘‘either destroyed
or returned to restricted locked storage
following each administration.’’ 18 To
make clear that this provision does not
preclude the retention of digital copies,
the interim rule provides that copies
16 See
17 U.S.C. 412.
CFR 202.13(b)(3).
18 37 CFR 202.13(b)(1).
17 37
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also may be returned to ‘‘secure
electronic storage.’’
As the wording of the interim rule
makes clear, the modification of the
definition of secure tests is temporary,
lasting only until the COVID–19
emergency ends. The Office is providing
this flexibility to ensure that test
administrators can continue to offer
socially valuable secure tests during the
national emergency. This
accommodation 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, however,
that the ‘‘specified centers’’ limitation
was a concern for many test publishers
even before the emergency, with several
commenters in this proceeding urging
the Office to amend that language to
facilitate a broader range of testing
models. The Office therefore will
monitor the operation of the interim
rule to help it evaluate whether and
under what conditions remote testing
should be permitted under the secure
tests regulations once the emergency
period ends.
In light of the ongoing national
emergency, 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, ‘‘because of the
demonstrable urgency of the conditions
they are designed to correct.’’ 19
III. Request for Comments
As noted, the Office is currently
unable to conduct in-person
examination of secure test applications.
The Office is exploring possible options
to provide such examinations via secure
videoconference. The Office invites
comments regarding the technological
requirements that would be needed for
test publishers to participate in such a
process. In particular, the Office is
interested in whether examination using
the WebEx platform would be
acceptable to publishers, as that
program is currently supported by the
Library of Congress. The Office requests
that comments be limited to these
topics.
IV. Ex Parte Communication
The Office has determined that
informal communication with interested
parties might be beneficial in this
19 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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rulemaking, including to discuss how
the change implemented by the interim
rule has operated in practice. The Office
therefore intends to issue guidelines
according to which parties may request
ex parte meetings with the Office in this
proceeding. Consistent with its practice
in other rulemakings, the Office will
establish requirements to ensure
transparency, including that
participating parties submit a list of
attendees and a written summary of any
oral communications, which will be
posted on the Office’s website. The ex
parte guidelines will made be available
at https://www.copyright.gov/
rulemaking/securetests when the Office
initiates the availability of such
communications. No ex parte meetings
in this proceeding will be scheduled
before that time.
*
*
*
*
*
List of Subjects in 37 CFR Part 202
Copyright, Preregistration and
Registration of Claims to Copyright.
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
1. The authority citation for part 202
continues to read as follows:
■
Authority: 17 U.S.C. 408(f), 702.
2. Amend § 202.13 by revising
paragraph (b)(1) to read as follows:
■
§ 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 normally is administered
at specified centers but is being
administered online during the national
emergency concerning the COVID–19
pandemic, 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 inperson proctors.
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Federal Register / Vol. 85, No. 90 / Friday, May 8, 2020 / Rules and Regulations
Dated: May 4, 2020.
Maria Strong,
Acting Register of Copyrights and Director
of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020–09916 Filed 5–7–20; 8:45 am]
BILLING CODE 1410–30–P
POSTAL SERVICE
39 CFR Part 111
Seamless Changes for Detached Mail
Unit (DMU) and Full-Service Mailings
Postal ServiceTM.
ACTION: Final rule.
AGENCY:
SUMMARY: The Postal ServiceTM is
revising Mailing Standards of the
United States Postal Service, Domestic
Mail Manual (DMM®) to require
Detached Mail Unit (DMU) mailers and
mailers that enter full-service mailings
at a Business Mail Entry Unit (BMEU)
to participate in Seamless Parallel by
June 1, 2020. In addition, the Postal
Service provides advance notice of its
intent: To require all mailers with an
authorized Detached Mail Unit to enroll
in the Seamless Acceptance Program by
May 1, 2021; and to verify all BMEUentered full-service mailings using only
automated sampling and verification
processes beginning July 1, 2021.
DATES: Effective June 1, 2020.
FOR FURTHER INFORMATION CONTACT:
Lance Bell at (407) 782–2972, or
Jacqueline Erwin at (202) 268–2158.
SUPPLEMENTARY INFORMATION:
Background
Seamless Acceptance leverages
electronic documentation (eDoc) and
the Intelligent Mail® barcodes (IMbs) on
all containers, handling units, and
mailpieces required under full-service.
Mailpiece scans collected from mail
processing equipment (MPE) and
samples from hand-held scanning
devices are reconciled to the mailer
eDoc to confirm proper mail preparation
for discounts claimed and confirm
correct postage payment. This capability
avoids the need for verification of mail
at acceptance.
The Postal Service published a notice
of proposed rulemaking on January 8,
2020 (85 FR 856–859), to require mailers
with authorized Detached Mail Units
(DMU) and mailers that enter fullservice mailings at a Business Mail
Entry Unit (BMEU) to participate in
Seamless Parallel by March 1, 2020. In
addition, the Postal Service provided
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15:57 May 07, 2020
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advance notice of its intent to require
DMU mailers to enroll in the Seamless
Acceptance Program by February 1,
2021. Moreover, the Postal Service
provided advance notices of its intent to
verify all full-service mailings entered at
a BMEU using automated sampling and
verification processes, beginning July 1,
2021.
The Postal Service received many
insightful comments and questions from
the mailing community in response to
the proposed rule of January 8, 2020. In
response to those comments, the Postal
Service incorporates the following
changes into this final rule, and notes
that aside from these changes, Seamless
Acceptance plans have not changed in
substance from the proposed rule of
January 8, 2020:
• Mailers with authorized DMUs and
mailers entering full-service mailings at
BMEUs must enroll in Seamless Parallel
by June 1, 2020 (instead of March 1,
2020).
In addition, the Postal Service intends
to propose the following regulatory
changes in a future rulemaking:
• Mailers with authorized DMUs, as a
condition of their DMU authorization,
must participate in Seamless
Acceptance by May 1, 2021;
• Full-Service mailings entered at
BMEUs will begin to be verified using
only automated sampling and
verification processes on July 1, 2021.
Comments on Seamless Changes for
Detached Mail Unit (DMU) and FullService Mailings and USPS Responses
The Postal Service received seven
formal responses on the Seamless
changes for Detached Mail Unit (DMU)
and Full-Service Mailings proposal. Six
formal responses included comments on
more than one issue.
Incentive for Mailers To Adopt
Seamless Acceptance
Five comments encouraged the
USPS® to provide an incentive for
mailers to defray costs incurred from
migrating to Seamless Acceptance.
Respondents claim that there is a
significant cost impact to business
(above and beyond full-service IMb
participation) to participate in Seamless
Acceptance, and that the USPS should
provide an incentive to offset the
investment and ongoing costs incurred
by mailers.
USPS Response
USPS will continue to work
collaboratively with industry
stakeholders to minimize any cost
impact to mailers that adopt Seamless
Acceptance. The Postal Service notes
that new rates, including incentives,
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27299
must be authorized by the Governors of
the Postal Service and reviewed by the
Postal Regulatory Commission.
Piece Weights May Cause Assessments
Four comments stated that varying
piece weights may cause a mailer to be
susceptible to an assessment.
Respondents claim this is especially
true for flat-size pieces susceptible to
environmental impacts (e.g., humidity).
USPS Response
USPS has initiated the creation of a
Task Team (MTAC TT–30) to work
collaboratively with industry
stakeholders. USPS will consider
recommendations from MTAC TT–30.
Images of Mailpieces To Assist With
Undocumented Errors
Four comments encourage USPS to
provide mailers with images of
undocumented pieces and other mailer
scorecard errors so they can identify the
specific mailer or mailing to investigate
and resolve mail quality issues.
USPS Response
USPS will continue to explore the
feasibility of this proposal.
The Timeline for Mandating Seamless
Acceptance for DMUs
Three comments had concerns that
the intended February 1, 2021 date was
too close to implementation of the
January 2021 price change. Price
changes require significant resources
and commenters are concerned that
their resources will be limited and will
not be ready by February 1, 2021.
USPS Response
As previously indicated, the USPS
recognizes the industry concern with
the proposed dates and has made the
following changes:
• Seamless Parallel enrollment must
be completed by June 1, 2020.
• Intended date to require DMU sites
to Seamless changed to May 1, 2021.
• Verification of BMEU full-service
mailings intended to begin on July 1,
2021.
General Overall Timeline and Deadline
To Adopt Seamless Acceptance
Three comments voice concerns on
the general timeline in terms of USPS
ability to provide the necessary
education, training, and customer
service needed for mailers to adopt
Seamless Acceptance.
USPS Response
USPS has provided extensive internal
and external training on the Streamlined
Mail Entry Programs. The Mail Entry
E:\FR\FM\08MYR1.SGM
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]]>Agencies
- Library of Congress
- U.S. Copyright Office
[Federal Register Volume 85, Number 90 (Friday, May 8, 2020)]
[Rules and Regulations]
[Pages 27296-27299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-09916]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
U.S. 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.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing an interim rule amending
its regulations governing the registration of copyright claims in
secure tests in order to address a disruption caused by the COVID-19
pandemic. The Office has become aware that certain examinations that
normally would qualify for registration as secure tests may be
ineligible for this option because they currently are being
administered remotely rather than at specified testing centers. The
interim rule allows otherwise-eligible tests that are administered
online during the national emergency to qualify as secure tests,
[[Page 27297]]
provided the test administrator employs sufficient security measures.
In addition, the Office is requesting public comment on the
technological requirements needed for examination of secure test claims
via secure teleconference. Finally, the Office is announcing its
intention to issue guidelines according to which parties may request ex
parte meetings with the Office in this proceeding.
DATES: Effective May 8, 2020. Comments must be made in writing and must
be received by the U.S. Copyright Office no later than June 8, 2020.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://copyright.gov/rulemaking/securetests. 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: Regan A. Smith, General Counsel and
Associate Register of Copyrights, [email protected]; Robert J.
Kasunic, Associate Register of Copyrights and Director of Registration
Policy and Practice, [email protected]; Kevin R. Amer, Deputy General
Counsel, [email protected]; or David Welkowitz, Attorney Advisor,
[email protected]. They can be reached by telephone at 202-707-
3000.
SUPPLEMENTARY INFORMATION:
I. Background
Under Section 408 of the Copyright Act, the U.S. Copyright Office
is responsible for registering copyright claims.\1\ In so doing, the
Office is obligated to obtain a registration deposit that is sufficient
to verify the claim and to provide an archival record of what was
examined and registered.\2\ Deposits of unpublished material must be
kept for the full term of copyright protection,\3\ and deposits are
available for public inspection.\4\ 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.'' \5\
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\1\ 17 U.S.C. 408.
\2\ Id. 408(b), 705(a).
\3\ Id. 704(d).
\4\ Id. 705(b).
\5\ 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 of their contents. 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 professional
certification.'' \6\ 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 following each
administration.'' \7\
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\6\ 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).
\7\ 37 CFR 202.13(b)(1).
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On June 12, 2017, the Office issued an interim rule (the ``June
2017 Interim Rule'') that memorialized certain aspects of its secure
test procedure and adopted new processes to increase the efficiency of
its examination of such works.\8\ Under this rule, 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 for
examination of an unredacted copy of the test.\10\
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\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\ Id.
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During the in-person meeting, the examiner will review the redacted
and unredacted copies in a secure location in the presence of the
applicant or his/her representative.\11\ 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 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.\12\ The June 2017 Interim Rule thus gives publishers the
benefit of establishing as their effective date of registration the
date when those materials are submitted to and received by the Office
electronically, rather than the later date when the in-person
examination takes place.
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\11\ 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).
\12\ 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.\13\ 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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\13\ 82 FR 52224 (Nov. 13, 2017). See 37 CFR 202.4(b), (k),
202.13 (implementing the November 2017 Interim Rule).
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The Office invited public comment on both the June 2017 and the
November 2017 Interim Rules. The Office received a total of thirty-nine
responses from a wide variety of testing organizations and other
interested parties.\14\
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\14\ The public comments in this proceeding may be accessed from
the Office's website at https://www.copyright.gov/rulemaking/securetests/.
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II. The Interim Rule
While the Office is continuing to evaluate the secure tests
regulations as a whole to determine whether changes may be warranted
before issuing a final rule, it is issuing an additional interim rule
at this time to address a specific disruption currently affecting test
publishers' ability to exercise this option. The Office has become
aware that, as a result of the COVID-19 pandemic, certain tests that
normally are administered with test-takers physically assembled at one
or more locations will instead be administered remotely, with test-
takers completing the exam online from their homes. Publishers have
expressed concern that this change may make the tests ineligible for
registration as secure tests, as they will not be administered ``at
specified centers.'' \15\ As a result, these publishers may be forced
to choose between registering their tests under the normal procedure
for literary works (thus forfeiting confidentiality) and either
delaying registration until they can administer the test according to
the existing rule or foregoing copyright
[[Page 27298]]
registration altogether. If a publisher chooses to delay registration,
it could lose the benefit of an earlier effective date of registration.
Although the building that houses the Copyright Office is currently
closed to the public and therefore staff are unable to conduct in-
person examinations or issue registrations for secure tests, as noted
above, an eligible secure test publisher can establish an effective
date of registration during this time by electronically submitting an
application, questionnaire, filing fee, and redacted copy to the
Office.\16\
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\15\ 37 CFR 202.13(b)(1).
\16\ See 17 U.S.C. 412.
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The interim rule amends the regulations to provide an accommodation
for tests that would be eligible for secure test registration but for
the pandemic. The rule provides that an otherwise-qualifying test shall
be considered a secure test if it normally is administered at specified
centers but is being administered online during the national emergency,
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. The rule does not specify particular measures that are
required to meet this standard, as the Office believes that publishers
generally should have flexibility to tailor such processes to their
specific needs. But as examples, the Office expects that sufficient
measures typically would include some combination of video monitoring
and/or recording, the disabling of certain functions on test-takers'
computers (e.g., copying and pasting), technological measures to
prevent access to external websites and other prohibited materials, and
identity verification of the individual taking the test. It also should
be noted that the interim rule does not alter the requirement that a
secure test be administered ``under supervision,'' which means that
``test proctors or the equivalent supervise the administration of the
test.'' \17\
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\17\ 37 CFR 202.13(b)(3).
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The rule also makes a clarifying change to the portion of the
definition concerning the storage of secure tests. The current language
requires all copies of a secure test to be ``either destroyed or
returned to restricted locked storage following each administration.''
\18\ To make clear that this provision does not preclude the retention
of digital copies, the interim rule provides that copies also may be
returned to ``secure electronic storage.''
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\18\ 37 CFR 202.13(b)(1).
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As the wording of the interim rule makes clear, the modification of
the definition of secure tests is temporary, lasting only until the
COVID-19 emergency ends. The Office is providing this flexibility to
ensure that test administrators can continue to offer socially valuable
secure tests during the national emergency. This accommodation 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, however, that the ``specified centers''
limitation was a concern for many test publishers even before the
emergency, with several commenters in this proceeding urging the Office
to amend that language to facilitate a broader range of testing models.
The Office therefore will monitor the operation of the interim rule to
help it evaluate whether and under what conditions remote testing
should be permitted under the secure tests regulations once the
emergency period ends.
In light of the ongoing national emergency, 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, ``because of the demonstrable urgency of the
conditions they are designed to correct.'' \19\
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\19\ 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
As noted, the Office is currently unable to conduct in-person
examination of secure test applications. The Office is exploring
possible options to provide such examinations via secure
videoconference. The Office invites comments regarding the
technological requirements that would be needed for test publishers to
participate in such a process. In particular, the Office is interested
in whether examination using the WebEx platform would be acceptable to
publishers, as that program is currently supported by the Library of
Congress. The Office requests that comments be limited to these topics.
IV. Ex Parte Communication
The Office has determined that informal communication with
interested parties might be beneficial in this rulemaking, including to
discuss how the change implemented by the interim rule has operated in
practice. The Office therefore intends to issue guidelines according to
which parties may request ex parte meetings with the Office in this
proceeding. Consistent with its practice in other rulemakings, the
Office will establish requirements to ensure transparency, including
that participating parties submit a list of attendees and a written
summary of any oral communications, which will be posted on the
Office's website. The ex parte guidelines will made be available at
https://www.copyright.gov/rulemaking/securetests when the Office
initiates the availability of such communications. No ex parte meetings
in this proceeding will be scheduled before that time.
* * * * *
List of Subjects in 37 CFR Part 202
Copyright, Preregistration and Registration of Claims to Copyright.
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 normally is
administered at specified centers but is being administered online
during the national emergency concerning the COVID-19 pandemic,
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.
[[Page 27299]]
Dated: May 4, 2020.
Maria Strong,
Acting Register of Copyrights and Director of the U.S. Copyright
Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-09916 Filed 5-7-20; 8:45 am]
BILLING CODE 1410-30-P
