[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 [www.gpo.gov]
[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 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: Suzanne V. Wilson, 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]; 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 ``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

[[Page 35742]]

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 https://www.copyright.gov/rulemaking/securetests/.
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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 
https://www.hhs.gov/about/news/2023/02/09/fact-sheet-covid-19-public-health-emergency-transition-roadmap.html.
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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

[[Page 35743]]

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]
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