Secure Tests

As Enacted ( Federal Register)

Cited authorities 4

Cited in

Published date	19 February 2021
Citation	86 FR 10174
Record Number	2021-03097
Section	Rules and Regulations
Court	Copyright Office,Library Of Congress

10174

Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Rules and Regulations

17 U.S.C. 408.

Id. 408(b), 705(a).

Id. 704(d).

Id. 705(b).

Id. 408(c)(1).

42 FR 59302, 59304 & n.2 (Nov. 16, 1977); see

also 43 FR 763, 768 (Jan. 4, 1978) (adopting the

definition of a secure test).

37 CFR 202.13(b)(1).

82 FR 26850 (June 12, 2017); see 37 CFR 202.13,

202.20(b)(3), (c)(2)(vi) (implementing the June 2017

Interim Rule).

37 CFR 202.13(c)(2).

Id.

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).

82 FR at 26853.

82 FR 52224 (Nov. 13, 2017). See 37 CFR

202.4(b), (k), 202.13 (implementing the November

2017 Interim Rule).

85 FR 27296 (May 8, 2020). See 37 CFR

202.13(b)(1) (implementing the May 2020 Interim

Rule).

37 CFR 202.13(b)(1).

85 FR at 27298; see 37 CFR 202.13(b)(3).

the event sponsor to grant general

permission to enter the regulated area.

Dated: February 11, 2021.

T.J. Barelli,

Captain, U.S. Coast Guard, Captain of the

Port San Diego.

[FR Doc. 2021–03312 Filed 2–18–21; 8:45 am]

BILLING CODE 9110–04–P

LIBRARY OF CONGRESS

37 CFR Part 202

[Docket No. 2017–8]

Secure Tests

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Interim rule.

SUMMARY

: The U.S. Copyright Office is

issuing an interim rule amending its

regulations governing the registration of

secure test items in order to address a

temporary disruption caused by the

COVID–19 pandemic. The interim rule

allows for examination of these claims

via secure videoconference during the

national emergency.

DATE

: Effective February 19, 2021.

FOR FURTHER INFORMATION CONTACT

Regan A. Smith, General Counsel and

Associate Register of Copyrights,

regans@copyright.gov, or Robert J.

Kasunic, Associate Register of

Copyrights and Director of Registration

Policy and Practice, rkas@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.

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.

Deposits

of unpublished material must be kept

for the full term of copyright

protection,

and all deposits are

available for public inspection.

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.’’

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

tests 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.’’

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.’’

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.

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.

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.

All in-person appointments

take place at the Copyright Office,

located in Washington, DC, at the James

Madison Memorial Building of the

Library of Congress.

During the in-person meeting, the

examiner reviews the redacted and

unredacted copies in a secure location

in the presence of the applicant or its

representative.

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, filing fee, and the redacted

copy that was uploaded to the electronic

registration system.

The June 2017

Interim Rule thus gives applicants the

benefit of establishing as their effective

date of registration the date when those

redacted materials are initially

submitted to, and received by, the Office

electronically, rather than the later date

when the in-person examination of the

unredacted material takes place.

In response to concerns raised by

stakeholders following the June 2017

Interim Rule, the Office issued a second

interim rule on November 13, 2017 (the

‘‘November 2017 Interim Rule’’) to

permit the 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.

For these claims, the November 2017

Interim Rule adopted most of the

registration procedures that apply to

secure tests under the June 2017 Interim

Rule.

On May 8, 2020, the Office issued a

third interim rule to address a

disruption caused by the COVID–19

pandemic (the ‘‘May 2020 Interim

Rule’’).

Specifically, certain tests that

normally would qualify for registration

as secure tests could be rendered

ineligible for this option, because they

were being administered remotely rather

than at specified testing centers due to

pandemic-related restrictions. The

interim rule amended the definition of

a ‘‘secure test’’ to allow otherwise-

eligible tests currently being

administered online during the national

emergency to qualify as secure tests,

provided the test administrator

employed sufficient security

measures.

The rule did not specify

particular measures required to meet

this standard, in order to afford

applicants flexibility to tailor such

processes to their specific needs. The

Office noted that the rule did not alter

the requirement that a secure test be

administered ‘‘under supervision,’’

meaning that ‘‘test proctors or the

equivalent supervise the administration

of the test.’’

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Pursuant to her authority under section 710(a)

of the Copyright Act, the Register determined that

the disruptions to the copyright system resulting

from the national emergency remain in effect as of

January 7, 2021. See U.S. Copyright Office,

Adjustments for Persons Affected by the COVID–19

Emergency (Jan. 7, 2021), https://

www.copyright.gov/newsnet/2021/871.html.

85 FR at 27298.

Id.

The public comments received in this

proceeding may be accessed from the Office’s

website at https://www.copyright.gov/rulemaking/

securetests/.

See Comments of the National College Testing

Association at 7–8 (June 8, 2020) (‘‘NCTA

Comments’’); Comments of Association of Test

Publishers at 9–11 (June 8, 2020) (‘‘ATP

Comments’’); Comments of Association of American

Medical Colleges at 1–2 (June 5, 2020) (‘‘AAMC

Comments’’); Comments of Educational Testing

Service (May 20, 2020) (‘‘ETS Comments’’).

See NCTA Comments at 4; ATP Comments at

6–7.

NCTA Comments at 4; ATP Comments at 5.

NCTA Comments at 4; ATP Comments at 5–6.

NCTA Comments at 4; ATP Comments at 6.

For ease of reference, the term ‘‘secure tests’’

is used interchangeably in this notice to refer to

both secure tests and groups of secure test items.

37 CFR 202.13(b)(1); 85 FR at 27298.

The Office made clear that the

modifications made under the May 2020

Interim Rule were temporary and would

last only until the COVID–19 emergency

ended.

The Office also noted that the

accommodation made under the May

2020 Interim Rule was not

determinative of the final rule in this

proceeding, but that the Office would

monitor the operation of the rule to

evaluate whether and under what

conditions tests that are remotely

administered by the test publishers

should qualify as ‘‘secure tests’’ under

the Office’s regulations once the

emergency period ends.

The Office also noted that it was

exploring possible options to examine

secure test claims via secure

videoconference. To that end, the Office

invited comments on the technological

requirements that would be needed for

test publishers to participate if the

Office decided to implement such a

process. The Office specifically sought

comment on the feasibility of using the

WebEx platform for remote

examination, as that program is

currently supported by the Library of

Congress.

The Office received five

comments in response.

As discussed

further below, the comments generally

supported the use of WebEx, or other

secure videoconferencing platforms.

The comments also reiterated

previous concerns regarding the Office’s

‘‘secure test’’ definition set forth in 37

CFR 202.13(b), primarily the

requirement that a test must be

administered on ‘‘scheduled dates’’ at a

‘‘specified center’’ where ‘‘test takers are

physically assembled at the same

time.’’

NCTA and ATP referred to

points previously made by several

commenters in this proceeding ‘‘that

existing testing technology already

supports the identical testing outcomes

provided’’ in the May 2020 Interim

Rule.

They contend that the Office’s

‘‘attempt to limit the [May 2020] Interim

Rule to tests that were ‘formerly

conducted in person’ fails to recognize

that there is simply no difference in at

home/remote proctored testing because

of COVID–19—the same type of testing

that was occurring on a daily basis

before COVID–19, and will continue to

occur in exactly the same manner

following a time when in-person testing

may resume.’’

They conclude ‘‘there

is no basis for requiring users of the

[May] 2020 Interim Rule to ‘return’ to

in-person testing’’ whenever the

national emergency ends and urge the

Office to make the May 2020 Interim

Rule permanent.

II. The Interim Rule

While the Office continues to evaluate

the secure tests regulations as a whole—

taking into consideration the concerns

of test publishers expressed throughout

this rulemaking—to determine whether

changes may be warranted before

issuing a final rule, it issues this

additional interim rule to allow for the

remote examination of secure test

claims by Copyright Office staff during

the national emergency. Although

applicants continue to submit these

claims during the Office’s closure, the

Office cannot conduct in-person

examinations. As a result, the Office

now has more than 1,500 secure test

claims pending and expects that this

number will otherwise continue to grow

for the duration of the COVID–19

emergency. The accumulation of claims

has created a backlog of secure test

claims that cannot be examined until

the Office resumes normal operations.

To address this issue, the Office has

devised a process that it is now

adopting that will allow its staff to

perform secure test examinations

remotely during the national emergency.

A. Examination Under the Existing

Rules and Considerations for a Remote

Examination Process

Currently, applicants seeking

registration of a secure test or a group

of secure test items must submit the

following materials through the Office’s

electronic registration system: (1) The

application, (2) a filing fee, (3) a brief

questionnaire, and (4) a redacted copy

of the work(s). The examiner assigned to

the claim reviews the submitted

materials to determine if the work(s)

qualify as a secure test or secure test

items.

If so, the examiner contacts the

applicant to schedule an in-person

appointment.

At the in-person examination, under

the 2017 Interim Rules, applicants are

required to bring the following materials

to the Office: (1) A copy of the

completed online application, (2) a

nonrefundable secure test examination

fee (calculated on an hourly basis), (3)

a copy of the redacted version of the

work(s) uploaded to the electronic

registration system, (4) a signed

declaration that the redacted copy

brought to the in-person appointment is

identical to the redacted copy uploaded

through the electronic registration

system, and (5) an unredacted copy of

the actual test that is administered to

test takers at specified centers on

scheduled dates or an unredacted copy

of the actual test items included in the

group registration. The redacted and

unredacted copies may be brought to the

appointment in electronic form,

provided they are stored on a CD–ROM,

DVD, flash drive, or other external

storage device. In such cases, the

applicant must bring a laptop or other

electronic device for the examiner to

view the secure test materials. In

recognition that the national

coronavirus emergency made testing

administration at specified centers

infeasible, the May 2020 Interim Rule

temporarily suspended this

requirement, ‘‘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 examiner then reviews the

redacted and unredacted copies in the

applicant’s presence. Upon completion

of the in-person examination, the

examiner will stamp the date of the

appointment on the redacted and

unredacted copies. If paper copies are

examined, the examiner date-stamps

both the redacted and unredacted

versions. If electronic copies are

examined, the examiner places the

external storage device (such as a flash

drive, CD, etc.) in its container, seals the

container with tamper-proof tape,

stamps the date of the appointment on

a label, and applies that label to the

container. Then the examiner returns

the physical or electronic copies to the

applicant. The signed declaration and

the previously uploaded redacted copy

of the work(s) are retained in the

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NCTA Comments at 7–8. NCTA also stated that

the Office should permanently adopt the principal

alterations in the 2020 Interim Rule—particularly

allowing remote testing, remote proctoring, and

electronic storage of tests. Id. at 3–6.

ATP Comments at 9–11. ATP also suggested

that the Office create a document that contains the

material being registered that was returned to the

applicant, in essence, generating the unredacted

deposit. Id. The interim rule retains that

responsibility with the applicant. ATP also stated

that the Office should adopt many of the interim

rule changes permanently, principally remote

testing and proctoring, and secure electronic

storage. Id. at 4–9.

AAMC Comments at 1–2.

See 85 FR at 27298. No registrations were

issued as a result of this test run; it was conducted

solely to determine the feasibility of the process.

Today’s interim rule provides an overview of

how remote examination will work; more detailed

instructions can be found in the Office’s circular on

secure tests (Circular 64), available at https://

www.copyright.gov/circs/.

In its circular on secure tests, the Office will

provide a representative list of software programs

that provide this functionality.

Office’s records and may be made

available to the public under

appropriate circumstances. If the

work(s) contain sufficient creative

authorship, a registration certificate will

be mailed to the applicant within a few

weeks of approval. Because of the

national emergency, in-person

examinations have been suspended

since March 2020.

The comments received in response to

the May 2020 Interim Rule suggested

various security protocols and other

procedures for the Office to consider in

implementing remote examination. The

National College Testing Association

(NCTA) supported examination by

videoconference and suggested various

software protocols that the Office could

consider to maintain security, such as

confirming compliance with National

Institute of Standards and Technology

(‘‘NIST’’) Federal Information

Processing Standards, employment of

appropriate encryption techniques, and

enhanced training of Office examiners

in the use of secure virtual meeting

technologies.

The Association of Test

Publishers (ATP) echoed these

suggestions and also suggested that the

Office employ dual screen control and

dual scrolling software.

The

Association of American Medical

Colleges (AAMC) endorsed the use of

WebEx, and suggested that for security

reasons, the applicant should be the

host of any teleconference.

After reviewing these comments, the

Literary Division of the Registration

Program solicited responses from

frequent submitters of secure test

applications to determine their

willingness and ability to participate in

a ‘‘test run’’ of a remote examination.

The National Board of Medical

Examiners (‘‘NBME’’) expressed interest

in participating. NBME proposed that

the ‘‘test run’’ be conducted using a

fabricated deposit copy created

specifically for use in the ‘‘test run;’’ the

remote examination would be

performed through the WebEx platform,

since it is currently supported by the

Library.

The ‘‘test run’’ examination took place

on June 12, 2020. NBME set up the 30-

minute appointment through WebEx

and provided the link to the examiner.

NBME shared its computer screen with

the examiner through WebEx and

displayed redacted and unredacted

deposit copies side-by-side, as would

occur at an in-person examination.

NBME used the dual-scrolling software

‘‘Setup Scrolling,’’ which allows for the

viewing of two PDF documents side-by-

side and scrolling through both

documents at the same time, while

keeping the pages from each document

aligned. This feature permits the

examiner to easily compare the two PDF

documents. NBME gave the examiner

control of its computer in order to scroll

through and examine the deposit

material, much in the same manner and

at the same speed as in an in-person

examination.

Overall, the remote examination

proceeded smoothly. NBME, however,

raised several logistical issues,

including questions regarding the

submission of the signed declaration

and the date-stamping of the unredacted

deposit. The Office has developed

proposed solutions to these issues,

addressed below. Given the success of

the ‘‘test run,’’ the Office now is

prepared to move forward with the

examination of secure test applications

through secure videoconference for the

duration of the national emergency.

B. The Remote Examination Procedure

Under This Interim Rule

Based on this input, the Office is now

adopting a procedure for examining

secure tests that is generally the same as

outlined in the current regulation,

except as described below.

Participation in the process set forth in

today’s Interim Rule is strictly

voluntary. Applicants may opt for an in-

person examination, recognizing that

such examinations cannot occur until

the national emergency ends and the

Office resumes normal operations.

Applicants are still required to submit

the application, filing fee, questionnaire,

and redacted copy of the work(s)

through the electronic registration

system. As before, the examiner will

review these materials to determine if

the work(s) qualifies as a secure test or

a group of secure test items. If any

issues arise during this review, the

examiner will communicate with the

applicant to resolve such issues before

scheduling a remote examination.

Once any issues regarding the

submitted materials have been resolved,

the examiner will work with the

applicant to schedule the appointment

for the remote examination. The

applicant is responsible for setting up

the appointment through the WebEx

platform or other similar

teleconferencing platforms that have

been approved for use by the Library of

Congress,

and sending the

videoconference information to the

email address provided by the

examiner.

The day before the scheduled

appointment, the examiner will enable

the ‘‘Upload Deposit’’ function in the

electronic registration system to allow

the applicant to upload the declaration

form attesting that the redacted copy

uploaded through the system and the

redacted copy displayed at the remote

examination are identical. The

declaration must include a legally

binding signature. The Office will

accept an electronic signature as defined

in 15 U.S.C. 7006, such as ‘‘/s/ Jane

Doe,’’ a digital image of a handwritten

signature on the form, or other verified

electronic signature. By contrast, the

applicant need not supply a completed

copy of the online application; the

examiner can retrieve a copy from the

electronic registration system, if

necessary.

On the day of the appointment, the

examiner will log into the approved

teleconferencing platform at the

appropriate time using the information

provided by the applicant. All

participants must use a personal

computer that has a camera and a

microphone so that the applicant and

examiner will be able to see and

communicate with each other during

the videoconference. During the

examination, the applicant will pull up

the redacted and unredacted copies

side-by-side when instructed by the

examiner. The applicant must have so-

called ‘‘dual-scrolling’’ software that is

compatible with the teleconferencing

platform being used in order to

participate in a remote examination

allowed under today’s interim rule. The

applicant must remain available to

answer any questions the examiner may

have during the course of the

examination.

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See, e.g., 37 CFR 210.27(m); 85 FR 58114,

58154 (Sept. 17, 2020).

See 37 CFR 201.3(d)(5).

See 82 FR at 26853.

H.R. Rep. No. 79–1980, at 260 (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) (30-day notice not

required where agency finds good cause).

Normally, at the conclusion of the in-

person examination, the examiner

would date-stamp the redacted and

unredacted paper copies of the deposit,

or, if the applicant brought electronic

copies to the appointment, the examiner

would place the physical storage device

in its container, seal the container with

tamper-proof tape, stamp the date of the

appointment on a label, and apply that

label to the container.

As this step is not possible in a

remote examination, applicant will be

responsible for maintaining its copy of

the unredacted deposit, in the event it

is needed for litigation or other

purposes. The interim rule specifies that

the metadata of the unredacted deposit

file must include the date of the

examination, and the service request

number generated by the electronic

registration system. The redacted

deposit that was uploaded to the

electronic registration system can be

used to identify the material examined

by the Office by comparing the redacted

and unredacted copies examined during

the videoconference session to

determine if they match. In connection

with the Office’s overall continuing

analysis of the registration option for

secure tests, the Office is considering

whether to impose a records retention

requirement upon applicants who

to other regulatory records retention

provisions.

After the appointment, the examiner

will prepare a Secure Test Appointment

Receipt, containing the following

information: (1) Date of appointment; (2)

time of appointment; (3) name of work

examined; (4) name of examiner

conducting examination; (5) applicant’s

representative(s); and (6) the fee charged

per hour. This receipt will be uploaded

into the record in the electronic

registration system. The examiner will

email a copy of this receipt to the

applicant, along with instructions for

submitting the secure test examination

fee.

The fee must be paid through

pay.gov or charged to an active deposit

account. The Office will not issue a

registration certificate until it receives

full payment of this fee. Calculation of

the fee will be done on an hourly basis,

in the same manner as for an in-person

examination.

If the Office issues a registration

certificate, the examiner will add an

annotation that includes the date of the

appointment. The effective date of

registration will be the date that the

Office received—in proper form—the

application, filing fee, and the redacted

copy of the test that was uploaded to the

electronic registration system,

consistent with the current procedure.

As with the other interim rules issued

in this proceeding, the Office will

monitor the operation of today’s interim

rule to evaluate whether remote

examination of secure tests and groups

of secure test items via secure

videoconference should continue once

the national emergency period ends.

The Office understands the concerns of,

and importance to, test publishers that

the definition for a ‘‘secure test’’ reflect

the current testing practices and testing

technology, as well as other issues

raised by commenters throughout this

rulemaking proceeding. The Office takes

these concerns seriously and continues

to carefully consider them. The Office

anticipates issuing a future separate

notice that will revisit the regulatory

definition for a ‘‘secure test.’’

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.’’

List of Subjects in 37 CFR Part 202

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—PREREGISTRATON AND

REGISTRATION OF CLAIMS TO

■1. The authority citation for part 202

continues to read as follows:

Authority: 17 U.S.C. 408(f), 702.

■2. Amend § 202.13 as follows:

■a. In paragraph (c)(1), remove

‘‘standard application’’ and add

‘‘Standard Application’’ in its place;

■b. Revise paragraph (c)(2);

■c. In paragraph (c)(3) introductory

text, remove ‘‘bring’’ and add in its

place ‘‘provide’’; and

■d. Revise paragraph (c)(3)(v) and

(c)(4).

The revisions read as follows:

§ 202.13 Secure tests.

* * * * *

(2) In case of a secure test, the

applicant must submit a redacted copy

of the entire test. In the case of a group

of test items prepared for use in a secure

test, the applicant must submit a

redacted copy of each test item. In all

cases the redacted copy must contain a

sufficient amount of visible content to

reasonably identify the work(s). In

addition, the applicant must complete

and submit the secure test questionnaire

that is posted on the Copyright Office’s

website. The questionnaire and the

redacted copy must be contained in

separate electronic files, and each file

must be uploaded to the electronic

registration system in Portable

Document Format (PDF). The Copyright

Office will review these materials to

determine if the work(s) qualify for an

examination under secure conditions. If

they appear to be eligible, the Copyright

Office will contact the applicant to

schedule an appointment to examine an

unredacted copy of the work(s). The

examination may be conducted in-

person or through remote access as

directed by the instructions provided on

the Office’s website.

(3) * * *

(v) In the case of a secure test, the

applicant must provide an unredacted

copy of the entire test. In the case of a

group of test items prepared for use in

a secure test, the applicant must provide

an unredacted copy of all the test items.

The applicant shall include the

following information in the metadata of

an unredacted electronic file:

(A) The date of the examination; and

(B) The service request number

generated by the electronic registration

system.

(4) The Copyright Office will examine

the copies specified in paragraphs

(c)(3)(iii) and (v) of this section under

secure conditions. The Office will retain

the signed declaration and the redacted

copy that was uploaded to the electronic

registration system. If the examination is

conducted in-person, the Office will

stamp the date of the appointment on

the copies and will return them to the

applicant when the examination is

complete.

* * * * *

Dated: February 3, 2021.

Shira Perlmutter,

U.S. Copyright Office.

Approved by:

Carla D. Hayden,

Librarian of Congress.

[FR Doc. 2021–03097 Filed 2–18–21; 8:45 am]

BILLING CODE 1410–30–P

VerDate Sep<11>2014 16:57 Feb 18, 2021 Jkt 253001 PO 00000 Frm 00007 Fmt 4700 Sfmt 9990 E:\FR\FM\19FER1.SGM 19FER1

tkelley on DSKBCP9HB2PROD with RULES

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