Secure Tests, 27296-27299 [2020-09916]

Download as PDF 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 VerDate Sep<11>2014 15:57 May 07, 2020 Jkt 250001 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: Frm 00010 Fmt 4700 Sfmt 4700 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: E:\FR\FM\08MYR1.SGM 08MYR1 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. VerDate Sep<11>2014 15:57 May 07, 2020 Jkt 250001 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 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 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 E:\FR\FM\08MYR1.SGM 08MYR1 27298 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 VerDate Sep<11>2014 15:57 May 07, 2020 Jkt 250001 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). PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 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. E:\FR\FM\08MYR1.SGM 08MYR1 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 VerDate Sep<11>2014 15:57 May 07, 2020 Jkt 250001 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, PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 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 08MYR1

Agencies

[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]


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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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \13\ 82 FR 52224 (Nov. 13, 2017). See 37 CFR 202.4(b), (k), 
202.13 (implementing the November 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\
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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