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Federal Register / Vol. 86, No. 32 / Friday, February 19, 2021 / Rules and Regulations
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The Office made clear that the modifications made under the May 2020
Interim Rule were temporary and would last only until the COVID19 emergency ended.17 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 Offices regulations once the emergency period ends.18
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.19 The Office received five comments in response.20 As discussed further below, the comments generally supported the use of WebEx, or other secure videoconferencing platforms.21
The comments also reiterated previous concerns regarding the Offices secure test definition set forth in 37
CFR 202.13b, 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. 22 NCTA and ATP referred to points previously made by several commenters in this proceeding that existing testing technology already supports the identical testing outcomes 17 Pursuant to her authority under section 710a 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, Copyright Office Further Extends Timing Adjustments for Persons Affected by the COVID19
Emergency Jan. 7, 2021, https
www.copyright.gov/newsnet/2021/871.html.
18 85 FR at 27298.
19 Id.
20 The public comments received in this proceeding may be accessed from the Offices website at https www.copyright.gov/rulemaking/
securetests/.
21 See Comments of the National College Testing Association at 78 June 8, 2020 NCTA
Comments; Comments of Association of Test Publishers at 911 June 8, 2020 ATP
Comments; Comments of Association of American Medical Colleges at 12 June 5, 2020 AAMC
Comments; Comments of Educational Testing Service May 20, 2020 ETS Comments.
22 See NCTA Comments at 4; ATP Comments at 67.

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provided in the May 2020 Interim Rule.23 They contend that the Offices 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 COVID19the same type of testing that was occurring on a daily basis before COVID19, and will continue to occur in exactly the same manner following a time when in-person testing may resume. 24 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.25
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 rulemakingto 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 Offices 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 COVID19
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 Offices electronic registration system: 1 The application, 2 a filing fee, 3 a brief questionnaire, and 4 a redacted copy of the works. The examiner assigned to the claim reviews the submitted materials to determine if the works qualify as a secure test or secure test 23 NCTA

Comments at 4; ATP Comments at 5.
24 NCTA Comments at 4; ATP Comments at 56.
25 NCTA Comments at 4; ATP Comments at 6.

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items.26 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 works 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 CDROM, 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 inperson proctors. 27
The examiner then reviews the redacted and unredacted copies in the applicants 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 works are retained in the 26 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.
27 37 CFR 202.13b1; 85 FR at 27298.

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