Acting Register of Copyrights United States Copyright Office 101 Independence Ave., S.E. Washington, DC 20559-6000 Dear Ms. Claggett: LAW OFFICE OF ALAN J. THIEMANN ATTORNEYS AT LAW 700 12 th Street, NW, Suite 700 Washington, DC 20005 (202) 904-2467 Re: Secure Test Registration Procedures (37 CFR Parts 201 and 202 [Docket 2017-8] This letter is submitted on behalf of the Association of Test Publishers ( ATP ). The ATP is the international trade association comprised of hundreds of publishers and sponsors of tests used in a variety of settings, including employment, education, clinical psychology and certification/licensure/ credentialing, as well as entities that provide related testing services or administer test programs ( ATP Members ). The ATP, as well as many ATP members who have contacted us, are deeply concerned about the actions taken by the Office on June 12, adopting an Interim Rule that reverses decades of previous procedures and practices for the examination and registration of secure tests, including release of a revised Circular 64 (82 Fed. Reg. 28,650). These steps are completely unwarranted and they are inconsistent with the Office s statement in its letter to me, dated April 13 (copy attached), that, We intend to initiate a rulemaking in the near future Not only has the Office acted arbitrarily to adopt an Interim Rule without following the required notice and comment procedures as set out in the Administrative Procedure Act (5 U.S.C. 551, et seq.) ( APA ), but it has set a public comment date of December 11, 2017. It is therefore inconceivable that the Office would rush to adopt an Interim Rule that significantly alters the current regulations when the administrative record required to support any such final rules will not be available for another five months. 1 This inverted sequencing of events demonstrates that the Office indeed has no 1 As the ATP pointed out in its March 21 letter to you (copy attached), for decades, secure test registration has provided the testing industry with a valuable mechanism by which to protect tests and test items that are to be used repeatedly in secure environments from the deposit requirement, so that the public cannot obtain them. As we explained, exposure to test items and answers (and other sensitive test-related materials, such as score sheets, test manuals, and scoring rubrics) would enable future test takers to learn what questions (and possibly answers) will be asked before they take the test. This would strip the test
Page Two intention of paying any attention to the public record it develops, that adoption of the Interim Rule as a final rule is a foregone conclusion, and that the Office considers solicitation of public comments to be a mere formality where any comments will be ignored. This reverse order procedure will severely prejudice testing organizations who seek to register secure tests after July 12 before the eventual final rules are adopted and/or require the Office to reconsider hundreds of applications over the five month period. Moreover, in its convoluted process, the Office has chosen to ignore the written request from the ATP in its March 21 letter for the Office to meet with ATP Members, who are uniquely qualified to propose effective methods to streamline the secure test procedures that would accomplish the Office s asserted goals. The ATP fully intends to avail itself of the December 11 comment date in order to provide the Office with factual evidence to document that substance of the proposed new procedures are infirm. In our March 21 letter, the ATP discussed how item banks/item pools are critical in current secure testing methodologies that still meet the requirements of 37 C.F.R. 202.20(b)(4) and (c)(2)(vi), and the guidance provided in Circular 64. Despite our explanation, the Office fails to recognize any of this information and instead the Notice is premised on numerous mistaken assertions that reveal the Office lacks an understanding of today s technologically-advanced forms of testing (e.g., computer-adaptive testing [CAT], linear on the fly testing [LOFT], computer mastery testing [CMT]) none of which are fixed form tests. It is clear to the ATP that the Office s conclusions are based in large measure on its confusion that registration of secure test content is often comingled with registration of computer software related to the administration of tests in fact, in the vast majority of situations, the owner of secure test content is NOT the same entity that owns the test administration computer software. Similarly, the Office s views on compilations of test items are seriously misguided; an item bank comprised of thousands of items is as equally copyrightable as the same thousands of items written individually on pieces of paper and submitted for examination and registration and thus the database represents multiple secure tests. The ATP expects that many individual testing organizations will provide information as to how they use item banks in their testing programs. Thus, at this time, we will not focus on the obviously erroneous assumptions and statements made in the Notice and instead address the Office s legal errors related to the Interim Rule. To begin with, the Office has no justification for the adoption of the Interim Rule. Indeed, in the Notice (at 26,851), the Office admits that the current secure test registration practices have worked reasonably well That statement confirms that there is no urgent need or exigent circumstances for the Interim Rule. That admission alone removes this situation from the good cause exception to dispense content of its assessment value, permit some test takers to gain unauthorized access to the items in order to cheat, and thus undermine the results of test as well as damage the integrity of the testing organization.
Page Three with the APA s notice and comment requirements. See U.S.C. 553(b)(B). 2 Nor does the Office s concern about the difficulty in obtaining a custodial copy of the complete test (id.) constitute good cause. 3 As stated in NRDC v. Evans, 316 F.3d 904, 906 (9th Cir. 2003), good cause requires some showing of exigency beyond generic complexity of data collection and time constraints. Equally important, the Office admits that the Interim Rule seeks to modify the exact current regulations and the Circular 64 publication that it has applied to registration applications for decades; the APA definition of rulemaking is an agency process for formulating, amending, or repealing an existing rule. U.S.C. 551(5). Consequently, the Office has no legal basis to avoid traditional notice and comment.. In general, notice and comment is required because the APA is intended to provide the opportunity for public participation in the development of agency rules, designed to provide for the fair and informed exercise of agency authority, exceptions have been narrowly construed and only reluctantly countenanced. Am. Fed n of Gov t Employees, AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981). The APA is also intended to ensure publication of agency rules of practice and procedure so that the public would be aware of them. See Batterton v. Marshall, 648 F.2d 694, 707 n. 68 (D.C. Cir. 1980). Despite these clear principles, the Office attempts to rely on JEM Broadcasting Co. v. FCC, 22 F.3d. 320 (D.C. Cir. 1994) to support its Interim Rule (Notice, at 26,853). That decision, which allowed an agency to apply a procedural rule that required the rejection of a defective application, stands for the proposition that the APA s notice and comment procedures are not applicable if the rule does not change substantive standards. There are various theoretical distinctions that reviewing courts have considered in the context of whether the APA s notice and comment procedures apply (e.g., procedures/substantive, binding/non-binding, interpretative/ legislative); none of them support the Office in this case. Indeed, the 2 To qualify for the good cause exception, the agency is required to find that the traditional notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Obviously, since the Copyright Office is following the traditional procedures with a comment date of December 11, 2017, it is stopped from asserting any of these grounds. The Administrative Conference of the United States ( Administrative Conference ), charged with responsibility for the APA, has urged agencies since 1992 to limit use of interim rules and to engage in 553 notice and comment rulemaking when any proposed rule significantly affect[s] conduct, activity, or a substantive interest that is a subject of agency jurisdiction. 57 Fed. Reg. 30,102, Recommendation 92-1 2, 3 (1992). 3 The ATP has a difficult time understanding the Office s concern that partial pages of a secure test generated from an item bank represents an imperfect record of the copyrighted test. A redacted deposit copy is the result for an item bank test just as it is for a fixed form test. Under the secure test process that has been in existence for decades, the examiner sits with a representative of the content owner and peruses a computer laptop or flash drive containing ALL of the items sought to be registered. Therefore, every combination of items that may eventually constitute a complete test is actually available for examination.
Page Four difficulty of defining what terms should be used for this analysis is why the Administrative Conference recommended as far back as 1992 that agencies simply utilize the notice and comment procedures. Under any formulation, the Office is simply wrong in its assertion that JEM justifies its actions here. As we noted previously, the original secure test procedures are codified in the CFRs and in Circular 64 the Office cannot simply declare that the existing regulations did not exist or were never needed (or that it is merely recodifying them). Consequently, the Office cannot now say these new rules are merely procedural or interpretive, when they modify and amend the existing ones and in the process, declare that content that has been allowed to be registered for decades is not now allowed to be registered. New rules that work substantive change in prior regulations are subject to the APA s procedures. Sprint v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003). To be clear, the new process contained in the Interim Rule represents a substantive change in the existing regulations inasmuch as the Office in the future will prohibit the registration of item banks of test content -- for the reasons given above, a particular secure test cannot be registered together with a database that has been used to create the test (Notice, at 26,852). 4 Thus, the Interim Rule is equally a regulation as the previous regulations have been, and thus, the APA notice and comment procedures must be followed. See Molycorp. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1991) ( the ultimate focus of inquiry is whether the agency action partakes of the fundamental characterization of a regulation, i.e., that it has the force of law ). As one reviewing court recently suggested, it is appropriate to conduct a functional analysis of whether the agency statement has a binding effect, determining whether the agency s words and deeds bind legally or as a practical matter. Iowa League of Cities v. EPA, 711 F.3d 844, 862 (8th Cir. 2013). Applying such a functional test here would clearly expose the Office s action as having a binding effect and thus, being substantive. The Office also asserts (Notice at 26,852) that the Interim Rule only alters the manner in which the parties present themselves or their viewpoints to the agency. Thus, it appears that the Office believes that the secure test examination and registration process is related to the organization of the Office. But that assertion is equally erroneous. That exemption stems from Executive Order 12,866 3(d), which exempts rules pertaining to agency organization (e.g., operational manuals), but not those that describe the procedure or practice requirements of the agency. 58 Fed. Reg. 51,735 (1993). 5 The Office s Ms. 4 It is on this point that the Office fails to understand that, in today s technologically advanced environment, an item bank of 20,000 items will be used by the content owner to develop literally thousands of versions of individual secure tests. By examining the entire item bank, the Office literally has seen all of the items even if it has not seen all of the permutations of how items are arrayed to create many different versions of a test that have been determined to be psychometrically valid and reliable. The requirements that these tests be non-marketed and administered under supervision in a manner that ownership and control of the test remains with the test sponsor or publisher, are still met using modern technology. 5 Moreover, the Office cannot argue that its Interim Rule is consistent with Executive Order 13777 which directed all departments and agencies to identify regulations that are outdated, unnecessary, or ineffective. See 82 Fed. Reg. 12,285 (February 12, 2017). Indeed, it is the Interim Rule s prohibition on
Karyn Temple Claggett Page Five assertion that the Interim Rule does not alter the rights or interests of parties is blatantly erroneous tests previously considered to be secure by the Office will no longer qualify and test formats previously registered by the Office will no longer be accepted. In the same vein, the ATP is not persuaded by the Office s suggestion that the Interim Rule is interpretive and therefore not subject to the APA notice and comment procedures. First, we note that reviewing courts do not blindly accept the agency s classification of a rule as interpretive just because it says it is. Chamber of Commerce v. OSHA, 636 F.2d 464, 468 (D.C. Cir. 1980). The Interim Rule is not interpretive because it contains a fixed and inflexible component, which is self-contained, unbending, arbitrary. See Hoctor v. U.S. Department of Agriculture, 82 F.3d 165, 170 (7th Cir. 1996). Indeed, the Interim Rule is not interpretive because it is not fairly derived from the substance of the existing regulations in fact, the Office has interpreted the existing language of the regulations in exactly the opposite manner for decades. For all these reasons, the ATP contends that the Office cannot support the promulgation of its Interim Rule and it therefore should be withdrawn in favor of adopting a final rule after the completion of a traditional APA notice and comment rulemaking. During the pendency of the rulemaking, the ATP submits that the only suitable option is for the Office to apply the previous regulations using the original Circular 64 procedures. Any other process will seriously prejudice the testing industry; any use of the Interim Rule while the rulemaking is taking place runs the risk that the Office will have to reconsider many secure test registrations after it issues a final rule. Even adhering to the required APA notice and comment process is not enough. The ATP reiterates that the Office also should hold a formal hearing on and invite all interested stakeholders to participate. We believe that ATP Members are uniquely qualified to educate the Office on current testing technology and to propose effective methods to streamline the secure test procedures that would accomplish the Office s asserted goals without eliminating the use of item banks. Sincerely, cc: William G Harris, PhD., CEO Enclosures Alan J. Thiemann Counsel to Association of Test Publishers item banks, effectively sending the testing industry back to the 1950 s when all tests were paper and pencil, that is outdated.