Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations 85435 

person listed in the FOR FURTHER

INFORMATION CONTACT section. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1– 

888–REG–FAIR (1–888–734–3247). The 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 

C. Collection of Information 

This rule will not call for a new 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3520). 

D. Federalism and Indian Tribal 

Governments 

A rule has implications for federalism 

under Executive Order 13132, 

Federalism, if it has a substantial direct 

effect on the States, on the relationship 

between the National Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. We have 

analyzed this rule under that Order and 

have determined that it is consistent 

with the fundamental federalism 

principles and preemption requirements 

described in Executive Order 13132. 

Also, this rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

F. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Directive 023–01, Rev. 1, associated 

implementing instructions, and 

Environmental Planning COMDTINST 

5090.1 (series), which guide the Coast 

Guard in complying with the National 

Environmental Policy Act of 1969 (42 

U.S.C. 4321–4370f), and have 

determined that this action is one of a 

category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule involves a 

temporary safety zone lasting only two 

hours that will prohibit entry within 

840 feet of the fireworks display barge. 

It is categorically excluded from further 

review under paragraph L60(a) of 

Appendix A, Table 1 of DHS Instruction 

Manual 023–01–001–01, Rev. 1. A 

Record of Environmental Consideration 

supporting this determination is 

available in the docket. For instructions 

on locating the docket, see the 

ADDRESSES section of this preamble. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places, or vessels. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 46 U.S.C. 70034, 70051, 70124; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Department of Homeland Security Delegation 

No. 00170.1, Revision No. 01.3. 

■ 2. Add § 165.T08–0895 to read as 

follows: 

§ 165.T08–0895 Safety Zone; Galveston 

Bay, Galveston, TX. 

(a) Location. The following area is a 

safety zone: All navigable waters within 

an 840-foot radius of a fireworks display 

barge, located in Galveston Bay, TX at 

29°32′52.72′′ N, 95°00′54.38′′ W, on the 

south side of the channel. 

(b) Definition. The term ‘‘designated 

representative’’ means Coast Guard 

Patrol Commanders, including Coast 

Guard coxswains, petty officers, and 

other officers operating Coast Guard 

vessels, and Federal, state, and local 

officers designated by or assisting the 

Captain of the Port Houston-Galveston 

(COTP) in the enforcement of the 

regulated areas. 

(c) Regulations. (1) Under the general 

safety zone regulations in subpart C of 

this part, no person will be permitted to 

enter, transit, anchor, or remain within 

the safety zone described in paragraph 

(a) of this section unless authorized by 

the COTP or a designated 

representative. If authorization is 

granted, persons and vessels receiving 

such authorization must comply with 

the lawful instructions of the COTP or 

designated representative. 

(2) Persons or vessels seeking to enter 

the safety zone must request permission 

from the COTP on VHF–FM channel 16 

or by telephone at 866–539–8114. 

(d) Enforcement period. This section 

will be enforced from 8 p.m. until 10 

p.m. on November 9, 2024. 

Dated: October 22, 2024. 

Keith M. Donohue, 

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

Port Sector Houston-Galveston. 

[FR Doc. 2024–24987 Filed 10–25–24; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF COMMERCE 

Patent and Trademark Office 

37 CFR Parts 2 and 7 

[Docket No. PTO–T–2024–0043] 

Changes in Post-Registration Audit 

Selection for Affidavits or Declarations 

of Use, Continued Use, or Excusable 

Nonuse in Trademark Cases 

AGENCY: United States Patent and 

Trademark Office, U.S. Department of 

Commerce. 

ACTION: Policy update. 

SUMMARY: To promote the accuracy and 

integrity of the trademark register, the 

United States Patent and Trademark 

Office (USPTO or Office) is amending 

its practice concerning the selection of 

registrations for audit during the postregistration maintenance process. When 

the USPTO implemented its audit 

program in 2017, it announced that it 

would conduct random audits of certain 

affidavits or declarations filed each year. 

To promote the accuracy and integrity 

of the trademark register, the USPTO is 

adding additional directed audits to its 

practice. 


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85436 Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations 

DATES: 

Effective date: This policy change is 

effective October 28, 2024. 

Comments due: Written comments 

must be received on or before November 

27, 2024 to ensure consideration. 

ADDRESSES: Written comments must be 

submitted through the Federal 

eRulemaking Portal at 

www.regulations.gov. To submit 

comments via the portal, commenters 

should go to www.regulations.gov/ 

docket/PTO-T-2024-0043 or enter 

docket number PTO–T–2024–0043 on 

the www.regulations.gov homepage and 

select the ‘‘Search’’ button. The site will 

provide search results listing all 

documents associated with this docket. 

Commenters can find a reference to this 

document and select the ‘‘Comment’’ 

button, complete the required fields, 

and enter or attach their comments. 

Attachments to electronic comments 

will be accepted in Adobe portable 

document format (PDF) or Microsoft 

Word format. Because comments will be 

made available for public inspection, 

information that the submitter does not 

desire to make public, such as an 

address or phone number, should not be 

included in the comments. 

Visit the Federal eRulemaking Portal 

for additional instructions on providing 

comments via the portal. If electronic 

submission of comments is not possible, 

please contact the USPTO using the 

contact information below in the FOR

FURTHER INFORMATION CONTACT section of 

this document for special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Montia Pressey, Office of the Deputy 

Commissioner for Trademark 

Examination Policy, at 571–272–8944 or 

TMPolicy@uspto.gov. 

SUPPLEMENTARY INFORMATION: On 

January 19, 2017, the USPTO published 

in the Federal Register a final rule 

making permanent the program under 

which it conducts audits of the 

affidavits or declarations of continued 

use or excusable nonuse filed pursuant 

to section 8 of the Trademark Act (the 

Act) (15 U.S.C. 1058), and affidavits or 

declarations of use in commerce or 

excusable nonuse filed pursuant to 

section 71 of the Act (15 U.S.C. 1141k) 

(collectively, affidavits or declarations). 

See Changes in Requirements for 

Affidavits or Declarations of Use, 

Continued Use, or Excusable Nonuse in 

Trademark Cases (82 FR 6259). The final 

rule provided the USPTO with the 

authority to request additional 

information in connection with the 

submission of an affidavit or declaration 

under sections 8 or 71 to assess and 

promote the accuracy and integrity of 

the trademark register. 

As explained in the final rule, the 

post-registration audit program benefits 

the public because it facilitates the 

USPTO’s ability to assess and promote 

the integrity of the trademark register by 

encouraging accuracy in the 

identification of goods or services for 

which use in commerce or continued 

use is claimed. The accuracy of the 

trademark register serves an important 

purpose for the public, as it is a 

reflection of marks that are actually in 

use in commerce in the United States 

for the goods/services identified in the 

registrations listed in the register. The 

public relies on the register to determine 

whether a chosen mark is available for 

use or registration. If a party’s search of 

the register discloses a potentially 

confusingly similar mark, that party 

may incur a variety of resulting costs 

and burdens, such as those associated 

with investigating the actual use of the 

disclosed mark to assess any conflict, 

proceedings to cancel the registration or 

oppose the application of the disclosed 

mark, civil litigation to resolve a dispute 

over the mark, or changing plans to 

avoid use of the party’s chosen mark. If 

a registered mark is not in use in 

commerce in the United States, or is not 

in use in commerce in connection with 

all the goods or services identified in 

the registration, these costs and burdens 

may be incurred unnecessarily. An 

accurate and reliable trademark register 

helps parties avoid such needless costs 

and burdens. 

The statutory requirements in sections 

8 and 71 exist to enable the USPTO to 

clear the register by canceling, in whole 

or in part, registrations for marks that 

are not in use in commerce for all or 

some of the goods or services identified 

in the registration. The final rule 

furthered this statutory purpose by 

allowing the USPTO to assess whether 

marks are actually in use for some or all 

of the goods or services covered by a 

registration, and to require deletion and/ 

or cancellation of those goods or 

services for which a mark is not in use 

(and for which excusable nonuse does 

not apply). 

To that end, the final rule provided 

the USPTO with the authority to require 

the submission of information, exhibits, 

affidavits or declarations, and such 

additional specimens of use as may be 

reasonably necessary for the USPTO to 

ensure that the register accurately 

reflects marks that are in use in 

commerce in the United States for all 

the goods or services identified in the 

registrations, unless excusable nonuse is 

claimed in whole or in part. This 

authority was not limited to random 

audits. However, because the USPTO 

previously announced that selection for 

the audits would be done on a random 

basis, the agency now provides notice 

that it amends its practice under 37 CFR 

2.161(b) and 7.37(b) to include directed 

audits. 

Since the final rule was adopted in 

2017, the USPTO has become aware of 

circumstances in which the accuracy 

and integrity of the trademark register 

would benefit from directed audits in 

addition to the current practice of 

random audits. Specifically, the USPTO 

discovered systemic efforts to subvert 

the requirements for use in commerce of 

a mark to support registration. 

First, the USPTO became aware of an 

ongoing issue of applicants submitting 

specimens that were digitally created or 

altered or were mockups and thus did 

not show actual use in commerce, as is 

required. That awareness led to the 

publication in July 2019 of Examination 

Guide 3–19, Examination of Specimens 

for Use in Commerce: Digitally Created/ 

Altered or Mockup Specimens, which 

was later incorporated into the 

Trademark Manual of Examining 

Procedure. 

Second, the enactment of the 

Trademark Modernization Act in 2020, 

and its implementation by the USPTO 

in 2021, resulted in the creation of two 

new post-registration proceedings that 

allow the Office to examine whether a 

registered mark is, or was at the time of 

registration, in use in commerce for 

goods or services covered by the 

registration. See Changes To Implement 

Provisions of the Trademark 

Modernization Act of 2020, 86 FR 64300 

(November 17, 2021). Certain disturbing 

trends have been discovered since the 

implementation of these proceedings, 

such as the use of specimen farms. 

These are websites that do not sell 

products in the ordinary course of trade. 

Instead, they provide applicants or 

registrants with documents to submit to 

the USPTO that appear to satisfy the 

requirement to show use of the mark in 

commerce on the goods recited in the 

application or registration. No two 

specimen farm websites are exactly 

alike, but many have the following: (1) 

incomplete contact information, blank 

pages, or missing or incomplete product 

descriptions; (2) place-holder text on 

many pages; (3) the same, sometimes 

incorrect, product information for 

multiple product listings; and/or (4) 

products that cannot be purchased in or 

shipped to the United States. Additional 

information about specimen farms has 

been published on the USPTO website 

at www.uspto.gov/trademarks/protect/ 

challenge-invalid-specimens. 

The USPTO plans to conduct directed 

audits of section 8 and 71 affidavits or 

declarations when the registration file 


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Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Rules and Regulations 85437 

1 17 U.S.C. 1201(a)(1)(A). 

2 Id. at 1201(a)(1)(B)–(D). 

3 Id. at 1201(a)(1)(C). 

4The Office has provided detailed analyses of the 

statutory requirements in its 2017 policy study on 

section 1201 and elsewhere. See U.S. Copyright 

Office, Section 1201 of Title 17 at 105–127 (2017), 

https://www.copyright.gov/policy/1201/section1201-full-report.pdf (‘‘Section 1201 Report’’). 

5Register of Copyrights, Section 1201 

Rulemaking: Ninth Triennial Proceeding to 

Determine Exemptions to the Prohibition on 

Circumvention, Recommendation of the Register of 

Copyrights (Oct. 2024), https://cdn.loc.gov/ 

copyright/1201/2024/2024_Section_1201_Registers_

Recommendation.pdf (‘‘Register’s 

Recommendation’’). 

6Section 1201 Report at 111–12. 

7 Id.; accord Register of Copyrights, Section 1201 

Rulemaking: Seventh Triennial Proceeding to 

Determine Exemptions to the Prohibition on 

Circumvention, Recommendation of the Register of 

Copyrights 12–13 (Oct. 2018). References to the 

Register’s recommendations in prior rulemakings 

Continued 

and/or the post-registration 

maintenance documents exhibit certain 

attributes that call into question 

whether a mark is in use in commerce 

in the ordinary course of trade. Among 

other things, these audits will focus on 

registration files in which it appears that 

a specimen accepted during 

examination or submitted with a section 

8 or 71 affidavit or declaration was 

digitally altered, consistent with the 

parameters set forth in Examination 

Guide 3–19, or comprised printouts 

from a website determined to be a 

specimen farm. Under the directed audit 

program, the initial office action may 

request proof of use for all or some of 

the goods or services covered by the 

registration, in addition to other 

information deemed relevant to the 

USPTO to determine whether the mark 

is in use in commerce in the ordinary 

course of trade or whether the elements 

of excusable nonuse apply. The 

procedures will otherwise follow those 

for random audits. 

After considering any public 

comments received in response to this 

notice, the USPTO will publish 

information about the program on its 

Post Registration Audit Program web 

page at www.uspto.gov/trademarks/ 

maintain/post-registration-auditprogram. The USPTO will likewise 

publish future changes to the postregistration audit program on its 

website. 

These changes will better position the 

audit program to address obvious issues 

with registration, thus protecting the 

integrity of the federal trademark 

registration system and improving the 

overall accuracy of the trademark 

register. 

Katherine K. Vidal, 

Under Secretary of Commerce for Intellectual 

Property and Director of the United States 

Patent and Trademark Office. 

[FR Doc. 2024–24755 Filed 10–25–24; 8:45 am] 

BILLING CODE 3510–16–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 201 

[Docket No. 2023–5] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Final rule. 

SUMMARY: In this final rule, the Librarian 

of Congress adopts exemptions to the 

provision of the Digital Millennium 

Copyright Act (‘‘DMCA’’) that prohibits 

circumvention of technological 

measures that control access to 

copyrighted works. As required under 

the statute, the Register of Copyrights, 

following a public proceeding, 

submitted a recommendation to the 

Librarian of Congress (‘‘Register’s 

Recommendation’’) regarding proposed 

exemptions. After careful consideration, 

the Librarian adopts final regulations 

based on the Register’s 

Recommendation. 

DATE: Effective October 28, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Rhea Efthimiadis, Assistant to the 

General Counsel, by email at meft@

copyright.gov or telephone at 202–707– 

8350. 

SUPPLEMENTARY INFORMATION: The 

Librarian of Congress, pursuant to 

section 1201(a)(1) of title 17, United 

States Code, has determined in this 

ninth triennial rulemaking proceeding 

that the prohibition against 

circumvention of technological 

measures that effectively control access 

to copyrighted works shall not apply for 

the next three years to persons who 

engage in certain noninfringing uses of 

specified classes of such works. This 

determination is based on the Register’s 

Recommendation. 

The discussion below summarizes the 

rulemaking proceeding and the 

Register’s recommendations, states the 

Librarian’s determination, and adopts 

the regulatory text specifying the 

exempted classes of works. A more 

complete discussion of the rulemaking 

process, the evidentiary record, and the 

Register’s analysis with respect to each 

proposed exemption can be found in the 

Register’s Recommendation at 

www.copyright.gov/1201/2024/. 

I. Background 

A. Statutory Requirements 

In 1998, as part of the Digital 

Millenium Copyright Act (‘‘DMCA’’), 

Congress added section 1201 to title 17 

to provide greater legal protection for 

copyright owners in the emerging digital 

environment. Section 1201 generally 

makes it unlawful to ‘‘circumvent a 

technological measure that effectively 

controls access to’’ a copyrighted work.1

Congress established a set of 

permanent exemptions to the 

prohibition on circumvention, as well a 

procedure to put in place limited 

temporary exemptions. Every three 

years, the Librarian of Congress, upon 

the recommendation of the Register of 

Copyrights, is authorized to adopt 

temporary exemptions, with respect to 

certain classes of copyrighted works, to 

remain in effect for the ensuing 

three-year period. Congress established 

this rulemaking as a ‘‘‘fail-safe’ 

mechanism’’ to ensure that the 

prohibition on circumvention would not 

adversely affect the public’s ability to 

make lawful uses of copyrighted works, 

including activities protected by the fair 

use doctrine.2

The triennial rulemaking occurs 

through a formal public process 

administered by the Register, who 

consults with the Assistant Secretary for 

Communications and Information of the 

Department of Commerce.3 Participants 

must meet specific legal and evidentiary 

requirements in order to qualify for a 

temporary exemption. The Register’s 

recommendations are based on her 

conclusions as to whether each 

proposed exemption meets those 

statutory requirements.4 As prescribed 

by the statute, she considers whether 

the prohibition on circumvention is 

having, or is likely to have, adverse 

effects on users’ ability to make 

noninfringing uses of a particular class 

of copyrighted works. Petitioners must 

provide evidence sufficient to allow the 

Register to draw such a conclusion. 

B. Rulemaking Standards 

Congress has specified the legal and 

evidentiary requirements for the section 

1201 rulemaking proceeding; these 

standards are discussed in greater detail 

in the Register’s Recommendation 5 and 

the Copyright Office’s 2017 policy study 

on section 1201.6 The Register will 

recommend granting an exemption only 

‘‘when the preponderance of the 

evidence in the record shows that the 

conditions for granting an exemption 

have been met.’’ 7 The evidence must 


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