Secure Tests, 26850-26854 [2017-12021]

Download as PDF 26850 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations 170 yard radius of fireworks display barge. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule. G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact 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: or his designated representatives. All vessels underway within this safety zone at the time it’s implemented are to depart the zone immediately. The Captain of the Port, Hampton Roads or representative can be contacted at telephone number (757) 668–5555. The Coast Guard and designated security vessels enforcing the safety zone can be contacted on VHF–FM marine band radio channel 13 (165.65 MHz) and channel 16 (156.8 MHz). (3) This section applies to all persons or vessels that intent to transit through the safety zone except participants and vessels that are engaged in the following operations: (i) Enforcing laws; (ii) Servicing aids to navigation, and (iii) Emergency response vessels. (4) The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies. (d) Enforcement period. This section will be enforced from 9 p.m. through 10 p.m. on July 4, 2017. Dated: June 6, 2017. Richard J. Wester, Captain, U.S. Coast Guard, Captain of the Port, Hampton Road. [FR Doc. 2017–12083 Filed 6–9–17; 8:45 am] PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS BILLING CODE 9110–04–P ■ 1. The authority citation for part 165 continues to read as follows: LIBRARY OF CONGRESS Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Department of Homeland Security Delegation No. 0170.1. Copyright Office 2. Add § 165.T05–0075 to read as follows: 37 CFR Parts 201 and 202 [Docket No. 2017–8] ■ pmangrum on DSK3GDR082PROD with RULES § 165.T05–0075 Hampton, VA. Secure Tests (a) Definitions. For the purposes of this section, Captain of the Port means the Commander, Sector Hampton Roads. Representative means any Coast Guard commissioned, warrant or petty officer who has been authorized to act on the behalf of the Captain of the Port. Participants mean individuals and vessels involved in explosives training. (b) Locations. The following area is a safety zone: All waters of Mill Creek, within 170 yard radius of latitude 37°00′36″ N., longitude 076°18′26″ W. (NAD 1983). (c) Regulations. (1) All persons are required to comply with the general regulations governing safety zones in § 165.23. (2) With the exception of participants, entry into or remaining in this safety zone is prohibited unless authorized by the Captain of the Port, Hampton Roads VerDate Sep<11>2014 15:07 Jun 09, 2017 Jkt 241001 U.S. Copyright Office, Library of Congress. ACTION: Interim rule with request for comments. AGENCY: Safety Zone, Mill Creek; The U.S. Copyright Office is issuing an interim rule that memorializes its special procedure for examining secure tests. The interim rule also includes a new workflow that will increase the efficiency of these examinations. Going forward, applicants must submit an online application, upload a redacted copy of the entire test to the electronic registration system, and complete and submit a brief questionnaire about the test. If the work appears to be eligible for the secure test process, the Office will contact the applicant and schedule an appointment to deliver the test to the Office in person. On the appointed date, the applicant must bring a copy of the application and a complete unredacted SUMMARY: PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 copy of the actual test. In addition, the applicant must bring a copy of the redacted version of the test, and a signed declaration confirming that this copy is identical to the redacted copy that was uploaded to the electronic registration system. If the Office confirms that the work qualifies as a secure test, it will examine the test as a whole to determine if it contains sufficient copyrightable authorship. If the Office registers the secure test, the registration will be effective as of the date that the Office received the application, filing fee, and the redacted copy of the entire test in proper form through the electronic registration system. The Office welcomes public comment on the interim rule. DATES: Effective July 12, 2017. Comments on the interim rule must be made in writing and must be received by the U.S. Copyright Office no later than December 11, 2017. 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 Web site at http:// 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 for special instructions using the contact information below. FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, Erik Bertin, Deputy Director of Registration Policy and Practice, or Abioye Mosheim, Attorney Advisor, by telephone at 202–707–8040 or by email at rkas@loc.gov,ebertin@ loc.gov and abmo@loc.gov. SUPPLEMENTARY INFORMATION: I. Background A. The Current Regulation Section 408(c)(1) of the Copyright Act authorizes the Register of Copyrights (the ‘‘Register’’) to issue regulations establishing administrative classes for the purpose of registering works with the U.S. Copyright Office (the ‘‘Office’’). It authorizes the Register to issue regulations specifying the nature of the copies or phonorecords required for each class. And it states that the Register ‘‘may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords.’’ 17 U.S.C. 408(c)(1). E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations The Office’s current practice for examining a secure test provides special procedures to protect the confidential nature of these works.1 A ‘‘secure test’’ is ‘‘a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. For these purposes a test is not marketed if copies are not sold but it is distributed and used in such a manner that ownership and control of copies remain with the test sponsor or publisher.’’ 37 CFR 202.20(b)(4). With respect to the deposit requirement, the regulations state that ‘‘[i]n the case of any secure test the Copyright Office will return the deposit to the applicant promptly after examination [, p]rovided, [t]hat sufficient portions, description[s], or the like are retained so as to constitute a sufficient archival record of the deposit.’’ 37 CFR 202.20(c)(2)(vi). pmangrum on DSK3GDR082PROD with RULES B. Current Examination Practices Under the Office’s current practices, ‘‘special arrangements can be made for the examination of such material under strict conditions of security and in the presence of a representative of the copyright owner.’’ 42 FR 59302, 59304 (Nov. 16, 1977). These practices are not, however, mentioned in the Office’s regulations. Instead they are set forth in sections 720.1 through 720.5 of the Compendium of Copyright Office Practices, Third Edition (hereinafter ‘‘Compendium’’).2 Briefly stated, applicants submit an application and the appropriate filing fee. Then they call the Office to schedule an appointment with an examiner. On the appointed date they bring a copy of the completed application to the Office, along with a redacted and an unredacted copy of the actual test. The examiner reviews these materials with the applicant present, and then returns the unredacted copy to the applicant when the examination is complete. The redacted copy is retained by the Office. This procedure has remained essentially unchanged for more than thirty years, and for the most part it has 1 The Office developed this procedure in response to correspondence submitted by Educational Testing Service, which was supported by twentytwo other examining boards and councils, including the National Board of Medical Examiners, the Federation of State Medical Boards, and the National Conference of Bar Examiners. 42 FR 59302, 59304 n.2 (Nov. 16, 1977). 2 The Office also published these practices in Copyright Registration for Secure Tests (Circular 64). This circular has been revised to reflect the new procedures discussed in this interim rule. Similar changes will be made to the Compendium in the near future. VerDate Sep<11>2014 15:07 Jun 09, 2017 Jkt 241001 worked well for both the Office and applicants alike. Recently, however, the Office has identified several issues that warrant attention. First, the secure test procedure only applies to tests that satisfy the definition of a ‘‘secure test’’ as set forth in the regulation. 37 CFR 202.20(b)(4). Under the current process, test publishers do not submit an actual copy of the test when they initially file an application and pay the filing fee. As a result, the Office has no way of knowing whether a test is eligible for the secure test procedure until the applicant arrives at the Office. On several occasions, applicants have travelled to the Office— sometimes from a great distance and at great expense—only to discover that their works do not qualify as secure tests. This is inconvenient for applicants, and it also deprives them of an earlier effective date of registration.3 If they decide to register their works using the normal procedure for tests, rather than the special procedure for secure tests, applicants must submit a complete, unredacted copy of the work. In this situation the effective date of registration will be based on the date that the unredacted copy is received. See Compendium 720, 1509.1(G). Second, because secure test publishers do not submit a copy of their works until they meet with the examiner, they prefer to schedule their appointments as soon as possible, in order to establish the earliest possible effective date of registration. The Office has traditionally accommodated these requests. As a result, secure test publishers often effectively gain the benefits of expedited service without providing a justification for special handling and without paying the additional fee for this service. 37 CFR 201.3(d)(7). Moreover, publishers do not always know which test or how many tests they will bring to the appointment. Therefore, the Office may not have a sufficient number of examiners on hand to conduct the examination. Third, the applicant must bring a redacted and an unredacted copy of the secure test for the examiner’s review. Compendium 720.2. While the unredacted copy must contain a complete copy of the entire test so that the Office can examine it for copyrightable authorship, under the Office’s current practices, the redacted copy will be accepted even if it contains a fraction of the test material, rather than the complete test. Id. 720.4. 3 The effective date of registration is the date the Office has received an application, an applicable filing fee, and the applicable deposit. 17 U.S.C. 410(d). PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 26851 Finally, under the Office’s current practices the applicant may register a secure test and a computer program used to administer that test by filing one application and one filing fee, if the works are owned by the same party and if the applicant submits an appropriate deposit for both the test and the program. Id. 720.5. As discussed below, however, the Office does not examine the computer program under secure conditions, because computer programs are not secure tests. C. Issues With Current Practices Although the Office’s secure test registration practices have worked reasonably well, they currently do not produce an optimal record of the actual tests submitted for registration. Under current practice, as mentioned above, the applicant must bring a copy of the completed application to the Office, along with a redacted and an unredacted copy of the actual test. When the examiner completes his or her review of a secure test, he or she will stamp the date of the appointment on the unredacted copy and return it to the applicant. What remains in the Office is a redacted copy of the test which, in most cases, only includes portions of the first and last pages of the test. Even in the case of a test administered in machine readable format or a test that contains questions taken from a database, the redacted copy deposited with the Office includes another 50 pages from the test but no more. Thus, under the current practice, the deposit that is maintained by the Copyright Office provides, at best, imperfect evidence of the complete test examined and registered by the Office. This may adversely affect, for instance, the ability of a plaintiff to show that it registered the test with the Copyright Office prior to bringing an infringement suit. The Office’s practices with respect to tests administered using databases and/ or computer programs raise other concerns. A database may contain a selection of questions that can be used to create many different tests. A computer program can be used to measure and record the answers given in response to a particular set of test questions. But the actual database and the actual program are not ‘‘tests’’ that are administered to test takers ‘‘under supervision at specified centers on specific dates.’’ 37 CFR 202.20(b)(4). As such, they cannot be considered a ‘‘secure test’’ within the meaning of the regulation, and using the secure test application process for such works is inconsistent with that regulation. In addition, databases and secure tests have distinct deposit requirements. An E:\FR\FM\12JNR1.SGM 12JNR1 26852 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations applicant may register a database by submitting a mere fraction of the content that appears within that work. 37 CFR 202.20(c)(2)(vii)(D)(3) through (5). On the contrary, to register a secure test, applicants must submit ‘‘one complete copy’’ of the work, which will be returned to the applicant when the examination is complete. 37 CFR 202.20(c)(2)(vi). Finally, allowing an applicant to register a secure test together with a computer program used to administer the test, is inconsistent with the Office’s general policy of requiring a separate application and filing fee for each distinct copyrightable work. See 17 U.S.C. 408(a), 409 (authorizing the Office to register a single ‘‘work’’); Compendium 511 (stating that ‘‘an applicant should prepare a separate application, filing fee, and deposit for each work that is submitted for registration’’). pmangrum on DSK3GDR082PROD with RULES II. The Interim Rule The interim rule codifies the Office’s longstanding practices for examining secure tests, while addressing several of the issues identified in the current practices described above. A. Submitting the Claim To register a secure test under the interim rule, applicants must complete and submit an application through the electronic registration system using the Standard Application, and they must pay the $55 filing fee for this application. Paper applications will no longer be accepted. Prior to making an examination appointment, applicants must complete and submit through the electronic registration system a brief questionnaire about the test, which may be obtained from the Office’s Web site at https://copyright.gov/forms/ securetest-questionnaire.pdf, and they must submit a redacted copy of the entire test. These steps are designed to identify works that are not eligible for the secure test procedure before the applicant invests the time and expense—perhaps mistakenly—in scheduling an appointment and travelling to the Office. Applicants must file a separate application, pay a separate fee, and upload a separate questionnaire for each secure test or when registering multiple versions of the same secure test. The Office will not register multiple secure tests together as an unpublished collection, a unit of publication, or a group of updates or revisions to a database. In addition, for the reasons given above, a particular secure test cannot be registered together with a database that has been used to create the test or a computer program that is used VerDate Sep<11>2014 15:07 Jun 09, 2017 Jkt 241001 to administer the test. To register a database or a computer program, applicants must submit a separate application, pay a separate fee, and submit the appropriate deposit for each work. Under no circumstances will the Office examine a database or a computer program under the special procedure for secure tests. When completing the application, applicants should state ‘‘secure test’’ as part of the title of the work, so that the Office can assign the claim to an appropriate member of the Registration Program. Upon request, the examiner will remove this statement from the title field before the claim is approved. Applicants may assert a claim in this type of work by stating ‘‘text,’’ or ‘‘compilation of test questions’’ in the application. To register a revised version of a preexisting test, applicants may state ‘‘revised secure test.’’ The redacted copy of the test should contain an unredacted copy of the title page for the test (if any), and a redacted copy of each page of questions. The number that has been assigned to each question (if any), and the page number that appears on each page of the test (if any) should be completely visible. Most of the content that appears on each page may be blocked out, provided that the applicant leaves a narrow vertical or diagonal strip of visible content. An example of an appropriate method for preparing a redacted copy has been provided in the new circular for secure tests. See Copyright Registration for Secure Tests (Circular 64). Applicants must upload the questionnaire and the redacted copy of the test to the electronic registration system; each item must be uploaded as a separate file. The file name for the questionnaire should include the term ‘‘Questionnaire’’ and the case number assigned to the claim. This eleven-digit number is automatically generated by the electronic registration system and it appears near the top of each screen of the online application. The file name for the redacted copy should match the title provided in response to questions 1 and 9 of the questionnaire. B. Scheduling the Appointment Once the application, filing fee, questionnaire, and the redacted copy have been received, the Office will assign the claim to a Literary Division examiner. The examiner will review these items to determine if the work appears to be eligible for the secure test procedure, based on the following criteria: First and foremost, the work must be a ‘‘test.’’ Questions that are stored in— or randomly pulled from—an electronic PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 database or a test bank cannot be registered as a secure test if the database or test bank is simply a medium for storing questions and does not represent an actual test. Second, under the longstanding regulatory definition, the test also must be administered under supervision at specified centers on scheduled dates. See 37 CFR 202.20(b)(4).4 A ‘‘specified center’’ is a place where test takers are physically assembled at the same time. For example, a ‘‘test’’ administered via a Web site to people located in their individual homes or offices would not be eligible for this procedure, both because a home or office would not qualify as a ‘‘specified center’’ and because the tests presumably would not be administered ‘‘under supervision.’’ In contrast, a test administered via computer to test takers gathered at the same time at proctor-monitored locations would qualify, even if the test is accessed through a secure Web site. In addition, the test must be administered ‘‘under supervision,’’ e.g., with test proctors or the like. These features are what, in the Office’s estimation, most readily distinguish an ordinary test from a ‘‘secure’’ test that requires special registration procedures, including the acceptance of a redacted copy of the deposit. These features were common to all of the test publishers that originally requested this procedure as a matter of public policy, and these features continue to be employed in the administration of the secure tests that provided the foundation for this procedure. 42 FR 59304 & n.2 (citing ‘‘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’’). If the test appears to be eligible for the secure test procedure, the examiner will contact the applicant and schedule an appointment to examine the test. But the fact that the examiner schedules an appointment does not necessarily mean that the work is eligible for the secure test procedure or that it will be registered. If at the time of the appointment, the examiner determines that the work does not meet the relevant legal and formal requirements, he or she will refuse to register the work as a secure test.5 4 The interim rule replaces the phrase ‘‘specific dates’’ in the current regulation with the more precise phrase ‘‘scheduled dates.’’ No substantive change is intended. 5 If the work appears to be eligible for registration under the normal examination procedures for a test, the examiner will ask the applicant to upload a complete, unredacted copy of the work, and he or E:\FR\FM\12JNR1.SGM 12JNR1 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations C. Processing Time Secure test claims will be reviewed in the order they are received, and will not be given priority over other claims with an earlier filing date. If an applicant would like to expedite the examination of a particular test or the scheduling of an appointment, the applicant must submit a request for special handling, demonstrate that there is a compelling reason for the request (such as litigation or publication deadlines), and pay the additional fee for expedited service. But regardless of whether the applicant requests special handling, the date that the Office received all the required elements in proper form through the electronic registration system will retroactively become the effective date of registration if the application is approved after examination. pmangrum on DSK3GDR082PROD with RULES D. What To Bring to the Appointment On the day of the appointment, the applicant must bring the following materials to the Office: (i) A copy of the completed application. (ii) The nonrefundable secure test examination fee. This fee will be based on the amount of time that it takes to examine the test materials during the appointment, and it is in addition to the filing fee mentioned above. Both the filing fee and the examination fee are nonrefundable, regardless of whether the Office issues a certificate of registration for the test. (iii) A copy of the redacted version of the test that was uploaded to the electronic registration system. (iv) A signed declaration confirming that this redacted copy is identical to the redacted copy that was uploaded to the electronic registration system. Applicants may obtain a copy of this declaration from the Office’s Web site at https://copyright.gov/forms/securetestdeclaration.pdf. (v) An unredacted copy of the actual test that is administered to test takers at specified centers on scheduled dates. In all cases, applicants must bring a physical copy of the unredacted version of the test, and the content of the test must be completely visible so that it may be examined. The questions that appear in the unredacted copy should precisely match the questions that appear in the redacted copy. If the test is administered with test booklet(s), the applicant should bring one complete copy of those booklet(s).6 If it is she will change the effective date of registration to match the date that the unredacted copy is received. 6 As mentioned above, different versions of the same test cannot be registered together on one VerDate Sep<11>2014 15:07 Jun 09, 2017 Jkt 241001 administered at specified centers on scheduled dates with computers or other electronic devices, the applicant may bring one of the following items: (i) A printout containing a complete copy of the actual test; or (ii) An electronic file that contains a complete copy of the actual test. The file must be stored on a CD–ROM, DVD, flash drive, or other storage device. The applicant must bring a laptop or other electronic device that can be used to view the test materials. Providing access to an electronic copy available online or an electronic file stored solely on the applicant’s device (rather than a separate storage device) is insufficient. In addition, the applicant should bring an appropriate container for the storage device, such as an envelope or jewel case. E. In-Person Examination of Secure Tests The examiner will review the redacted and unredacted copies in a secure location in the presence of the applicant or his/her representative.7 When the examination is complete, the examiner will stamp the date of the appointment on the redacted and unredacted copies and will return them to the applicant. If the applicant brought test booklet(s) or a printout of the test, the specialist will stamp the first page of the test materials. If the applicant brought an electronic file stored on a flash drive or other storage device, the examiner will place the device in its container, stamp the date of the appointment on a label, apply that label to the container, and seal the container with tamper-proof tape. The signed declaration and the redacted copy that was uploaded to the electronic system will be retained by the Office. If the examiner determines that the relevant legal and formal requirements have been met, he or she will register the claim(s) and will add an annotation to the certificate such as: ‘‘Basis for registration: Secure test examined under 37 CFR 202.13.’’ The registration will be 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. In this respect, the interim rule will provide test publishers with the benefit of an earlier effective date of registration as compared to the current procedure. application. There is no group registration option for secure tests. 7 If the test is lengthy or if the applicant is bringing multiple tests to the appointment, the Office may assign two or more examiners to handle PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 26853 III. Request for Comments The interim rule will go into effect 30 days after the publication of this notice in the Federal Register. Comments will be due 150 days thereafter. The Office decided to issue this rule without publishing an initial notice of proposed rulemaking for two reasons. First, this is a ‘‘rule[ ] of agency organization, procedure, or practice.’’ 5 U.S.C. 553(b)(3)(A). It does not ‘‘alter the rights or interests of parties.’’ JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). It merely ‘‘alter[s] the manner in which the parties present themselves or their viewpoints to the agency.’’ Id. Thus, notice and comment is not required under the Administrative Procedure Act. Second, the rule codifies many of the Office’s existing procedures for examining secure tests. These procedures have been in place for more than thirty years, so interested parties should be familiar with them already. The rule does change the Office’s current procedures in some respects, but there is good cause for making these changes effective on an interim basis: Doing so will give both the Office and interested parties an opportunity to see how the new procedures work in practice, and to consider whether these procedures should be modified in any respect before the Office issues a final rule. See 5 U.S.C. 553(b)(3)(B). * * * * * List of Subjects 37 CFR Part 201 Copyright, General provisions. 37 CFR Part 202 Copyright, Preregistration and Registration of Claims to Copyright. Interim Regulation In consideration of the foregoing, the U.S. Copyright Office amends 37 CFR parts 201 and 202 as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702. 2. In § 201.3, revise paragraph (d)(5) to read as follows: ■ the claims. The number of examiners assigned to each claim will be determined solely by the Office. In such cases, the applicant must pay a separate examination fee for each staff member who participates in the examination. E:\FR\FM\12JNR1.SGM 12JNR1 26854 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations § 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * * (d) * * * * (5) Secure test examining fee (per staff member per hour) ............................................................................................................... * * * * * PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 3. The authority citation for part 202 continues to read as follows: ■ Authority: 17 U.S.C. 408(f), 702. ■ 4. Add § 202.13 to read as follows: pmangrum on DSK3GDR082PROD with RULES § 202.13 Secure tests. (a) General. This section prescribes rules pertaining to the registration of secure tests. (b) Definitions. For purposes of this section— (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 following each administration. (2) A test is nonmarketed if copies of the test are not sold, but instead are distributed and used in such a manner that the test sponsor or publisher retains ownership and control of the copies. (3) A test is administered under supervision if test proctors or the equivalent supervise the administration of the test. (4) A specified center is a place where test takers are physically assembled at the same time. (c) Deposit requirements. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a secure test may be registered with identifying material, if the following conditions are met: (1) The applicant must complete and submit a standard application. The application may be submitted by any of the parties listed in § 202.3(c)(1). (2) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (3) The applicant must submit a redacted copy of the entire secure test. In addition, the applicant must complete and submit the questionnaire that is posted on the Copyright Office’s Web site. 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 VerDate Sep<11>2014 15:07 Jun 09, 2017 Jkt 241001 Document Format (PDF). The Copyright Office will review these materials to determine if the work qualifies for the secure test procedure. If the work appears to be eligible, the Copyright Office will contact the applicant to schedule an appointment to examine an unredacted copy of the test under secure conditions. (4) On the appointed date, the applicant must bring the following materials to the Copyright Office: (i) A copy of the completed application. (ii) The appropriate examination fee, as required by § 201.3(d) of this chapter. (iii) A copy of the redacted version of the secure test that was uploaded to the electronic registration system. (iv) A signed declaration confirming that the redacted copy specified in paragraph (c)(4)(iii) of this section is identical to the redacted copy that was uploaded to the electronic registration system. (v) An unredacted copy of the entire secure test. (5) The Copyright Office will examine the copies specified in paragraphs (c)(4)(iii) and (v) of this section in the applicant’s presence. When the examination is complete, the Office will stamp the date of the appointment on the copies and will return them to the applicant. The Office will retain the signed declaration and the redacted copy that was uploaded to the electronic registration system. ■ 5. Amend § 202.20 as follows: ■ a. Revise paragraph (b)(3).; ■ b. Remove paragraph (b)(4); ■ c. Redesignate paragraphs (b)(5) and (6) as paragraphs (b)(4) and (5), respectively; ■ d. Remove ‘‘, as amended by Pub. L. 94–553’’ from newly redesignated paragraph (b)(4) and add a period in its place; and ■ e. Revise paragraph (c)(2)(vi). The revisions read as follows: § 202.20 Deposit of copies and phonorecords for copyright registration. * * * * * (b) * * * (3) The term secure test has the meaning set forth in § 202.13(b). * * * * * (c) * * * (2) * * * PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 250 (vi) Tests. In the case of tests, and answer material for tests, published separately from other literary works, the deposit of one complete copy will suffice in lieu of two copies. In the case of any secure test the applicant may submit identifying material in lieu of one complete copy if the conditions set forth in § 202.13(c) have been met. * * * * * Dated: May 19, 2017. Karyn Temple Claggett, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2017–12021 Filed 6–9–17; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2016–0244; FRL–9962–54– Region 9] Approval and Promulgation of Implementation Plans; State of California; Coachella Valley; Attainment Plan for 1997 8-Hour Ozone Standards Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is approving state implementation plan (SIP) revisions submitted by the State of California to provide for attainment of the 1997 8hour ozone national ambient air quality standards (NAAQS or ‘‘standards’’) in the Coachella Valley nonattainment area. The EPA finds the emissions inventories to be acceptable and is approving the reasonably available control measures, transportation control strategies and measures, rate of progress and reasonable further progress demonstrations, attainment demonstration, and vehicle miles traveled offset demonstration. We have determined that motor vehicle emissions budgets are not required for the 1997 8-hour ozone standards so we SUMMARY: E:\FR\FM\12JNR1.SGM 12JNR1

Agencies

[Federal Register Volume 82, Number 111 (Monday, June 12, 2017)]
[Rules and Regulations]
[Pages 26850-26854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12021]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201 and 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 that 
memorializes its special procedure for examining secure tests. The 
interim rule also includes a new workflow that will increase the 
efficiency of these examinations. Going forward, applicants must submit 
an online application, upload a redacted copy of the entire test to the 
electronic registration system, and complete and submit a brief 
questionnaire about the test. If the work appears to be eligible for 
the secure test process, the Office will contact the applicant and 
schedule an appointment to deliver the test to the Office in person. On 
the appointed date, the applicant must bring a copy of the application 
and a complete unredacted copy of the actual test. In addition, the 
applicant must bring a copy of the redacted version of the test, and a 
signed declaration confirming that this copy is identical to the 
redacted copy that was uploaded to the electronic registration system. 
If the Office confirms that the work qualifies as a secure test, it 
will examine the test as a whole to determine if it contains sufficient 
copyrightable authorship. If the Office registers the secure test, the 
registration will be effective as of the date that the Office received 
the application, filing fee, and the redacted copy of the entire test 
in proper form through the electronic registration system. The Office 
welcomes public comment on the interim rule.

DATES: Effective July 12, 2017. Comments on the interim rule must be 
made in writing and must be received by the U.S. Copyright Office no 
later than December 11, 2017.

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 Web site 
at http://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 for special 
instructions using the contact information below.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice, Erik 
Bertin, Deputy Director of Registration Policy and Practice, or Abioye 
Mosheim, Attorney Advisor, by telephone at 202-707-8040 or by email at 
rkas@loc.gov,ebertin@loc.gov and abmo@loc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Current Regulation

    Section 408(c)(1) of the Copyright Act authorizes the Register of 
Copyrights (the ``Register'') to issue regulations establishing 
administrative classes for the purpose of registering works with the 
U.S. Copyright Office (the ``Office''). It authorizes the Register to 
issue regulations specifying the nature of the copies or phonorecords 
required for each class. And it states that the Register ``may require 
or permit, for particular classes, the deposit of identifying material 
instead of copies or phonorecords.'' 17 U.S.C. 408(c)(1).

[[Page 26851]]

    The Office's current practice for examining a secure test provides 
special procedures to protect the confidential nature of these 
works.\1\ A ``secure test'' is ``a nonmarketed test administered under 
supervision at specified centers on specific dates, all copies of which 
are accounted for and either destroyed or returned to restricted locked 
storage following each administration. For these purposes a test is not 
marketed if copies are not sold but it is distributed and used in such 
a manner that ownership and control of copies remain with the test 
sponsor or publisher.'' 37 CFR 202.20(b)(4). With respect to the 
deposit requirement, the regulations state that ``[i]n the case of any 
secure test the Copyright Office will return the deposit to the 
applicant promptly after examination [, p]rovided, [t]hat sufficient 
portions, description[s], or the like are retained so as to constitute 
a sufficient archival record of the deposit.'' 37 CFR 202.20(c)(2)(vi).
---------------------------------------------------------------------------

    \1\ The Office developed this procedure in response to 
correspondence submitted by Educational Testing Service, which was 
supported by twenty-two other examining boards and councils, 
including the National Board of Medical Examiners, the Federation of 
State Medical Boards, and the National Conference of Bar Examiners. 
42 FR 59302, 59304 n.2 (Nov. 16, 1977).
---------------------------------------------------------------------------

B. Current Examination Practices

    Under the Office's current practices, ``special arrangements can be 
made for the examination of such material under strict conditions of 
security and in the presence of a representative of the copyright 
owner.'' 42 FR 59302, 59304 (Nov. 16, 1977). These practices are not, 
however, mentioned in the Office's regulations. Instead they are set 
forth in sections 720.1 through 720.5 of the Compendium of Copyright 
Office Practices, Third Edition (hereinafter ``Compendium'').\2\ 
Briefly stated, applicants submit an application and the appropriate 
filing fee. Then they call the Office to schedule an appointment with 
an examiner. On the appointed date they bring a copy of the completed 
application to the Office, along with a redacted and an unredacted copy 
of the actual test. The examiner reviews these materials with the 
applicant present, and then returns the unredacted copy to the 
applicant when the examination is complete. The redacted copy is 
retained by the Office.
---------------------------------------------------------------------------

    \2\ The Office also published these practices in Copyright 
Registration for Secure Tests (Circular 64). This circular has been 
revised to reflect the new procedures discussed in this interim 
rule. Similar changes will be made to the Compendium in the near 
future.
---------------------------------------------------------------------------

    This procedure has remained essentially unchanged for more than 
thirty years, and for the most part it has worked well for both the 
Office and applicants alike. Recently, however, the Office has 
identified several issues that warrant attention.
    First, the secure test procedure only applies to tests that satisfy 
the definition of a ``secure test'' as set forth in the regulation. 37 
CFR 202.20(b)(4). Under the current process, test publishers do not 
submit an actual copy of the test when they initially file an 
application and pay the filing fee. As a result, the Office has no way 
of knowing whether a test is eligible for the secure test procedure 
until the applicant arrives at the Office. On several occasions, 
applicants have travelled to the Office--sometimes from a great 
distance and at great expense--only to discover that their works do not 
qualify as secure tests. This is inconvenient for applicants, and it 
also deprives them of an earlier effective date of registration.\3\ If 
they decide to register their works using the normal procedure for 
tests, rather than the special procedure for secure tests, applicants 
must submit a complete, unredacted copy of the work. In this situation 
the effective date of registration will be based on the date that the 
unredacted copy is received. See Compendium 720, 1509.1(G).
---------------------------------------------------------------------------

    \3\ The effective date of registration is the date the Office 
has received an application, an applicable filing fee, and the 
applicable deposit. 17 U.S.C. 410(d).
---------------------------------------------------------------------------

    Second, because secure test publishers do not submit a copy of 
their works until they meet with the examiner, they prefer to schedule 
their appointments as soon as possible, in order to establish the 
earliest possible effective date of registration. The Office has 
traditionally accommodated these requests. As a result, secure test 
publishers often effectively gain the benefits of expedited service 
without providing a justification for special handling and without 
paying the additional fee for this service. 37 CFR 201.3(d)(7). 
Moreover, publishers do not always know which test or how many tests 
they will bring to the appointment. Therefore, the Office may not have 
a sufficient number of examiners on hand to conduct the examination.
    Third, the applicant must bring a redacted and an unredacted copy 
of the secure test for the examiner's review. Compendium 720.2. While 
the unredacted copy must contain a complete copy of the entire test so 
that the Office can examine it for copyrightable authorship, under the 
Office's current practices, the redacted copy will be accepted even if 
it contains a fraction of the test material, rather than the complete 
test. Id. 720.4.
    Finally, under the Office's current practices the applicant may 
register a secure test and a computer program used to administer that 
test by filing one application and one filing fee, if the works are 
owned by the same party and if the applicant submits an appropriate 
deposit for both the test and the program. Id. 720.5. As discussed 
below, however, the Office does not examine the computer program under 
secure conditions, because computer programs are not secure tests.

C. Issues With Current Practices

    Although the Office's secure test registration practices have 
worked reasonably well, they currently do not produce an optimal record 
of the actual tests submitted for registration. Under current practice, 
as mentioned above, the applicant must bring a copy of the completed 
application to the Office, along with a redacted and an unredacted copy 
of the actual test. When the examiner completes his or her review of a 
secure test, he or she will stamp the date of the appointment on the 
unredacted copy and return it to the applicant. What remains in the 
Office is a redacted copy of the test which, in most cases, only 
includes portions of the first and last pages of the test. Even in the 
case of a test administered in machine readable format or a test that 
contains questions taken from a database, the redacted copy deposited 
with the Office includes another 50 pages from the test but no more. 
Thus, under the current practice, the deposit that is maintained by the 
Copyright Office provides, at best, imperfect evidence of the complete 
test examined and registered by the Office. This may adversely affect, 
for instance, the ability of a plaintiff to show that it registered the 
test with the Copyright Office prior to bringing an infringement suit.
    The Office's practices with respect to tests administered using 
databases and/or computer programs raise other concerns. A database may 
contain a selection of questions that can be used to create many 
different tests. A computer program can be used to measure and record 
the answers given in response to a particular set of test questions. 
But the actual database and the actual program are not ``tests'' that 
are administered to test takers ``under supervision at specified 
centers on specific dates.'' 37 CFR 202.20(b)(4). As such, they cannot 
be considered a ``secure test'' within the meaning of the regulation, 
and using the secure test application process for such works is 
inconsistent with that regulation. In addition, databases and secure 
tests have distinct deposit requirements. An

[[Page 26852]]

applicant may register a database by submitting a mere fraction of the 
content that appears within that work. 37 CFR 202.20(c)(2)(vii)(D)(3) 
through (5). On the contrary, to register a secure test, applicants 
must submit ``one complete copy'' of the work, which will be returned 
to the applicant when the examination is complete. 37 CFR 
202.20(c)(2)(vi). Finally, allowing an applicant to register a secure 
test together with a computer program used to administer the test, is 
inconsistent with the Office's general policy of requiring a separate 
application and filing fee for each distinct copyrightable work. See 17 
U.S.C. 408(a), 409 (authorizing the Office to register a single 
``work''); Compendium 511 (stating that ``an applicant should prepare a 
separate application, filing fee, and deposit for each work that is 
submitted for registration'').

II. The Interim Rule

    The interim rule codifies the Office's longstanding practices for 
examining secure tests, while addressing several of the issues 
identified in the current practices described above.

A. Submitting the Claim

    To register a secure test under the interim rule, applicants must 
complete and submit an application through the electronic registration 
system using the Standard Application, and they must pay the $55 filing 
fee for this application. Paper applications will no longer be 
accepted. Prior to making an examination appointment, applicants must 
complete and submit through the electronic registration system a brief 
questionnaire about the test, which may be obtained from the Office's 
Web site at https://copyright.gov/forms/securetest-questionnaire.pdf, 
and they must submit a redacted copy of the entire test. These steps 
are designed to identify works that are not eligible for the secure 
test procedure before the applicant invests the time and expense--
perhaps mistakenly--in scheduling an appointment and travelling to the 
Office.
    Applicants must file a separate application, pay a separate fee, 
and upload a separate questionnaire for each secure test or when 
registering multiple versions of the same secure test. The Office will 
not register multiple secure tests together as an unpublished 
collection, a unit of publication, or a group of updates or revisions 
to a database. In addition, for the reasons given above, a particular 
secure test cannot be registered together with a database that has been 
used to create the test or a computer program that is used to 
administer the test. To register a database or a computer program, 
applicants must submit a separate application, pay a separate fee, and 
submit the appropriate deposit for each work. Under no circumstances 
will the Office examine a database or a computer program under the 
special procedure for secure tests.
    When completing the application, applicants should state ``secure 
test'' as part of the title of the work, so that the Office can assign 
the claim to an appropriate member of the Registration Program. Upon 
request, the examiner will remove this statement from the title field 
before the claim is approved. Applicants may assert a claim in this 
type of work by stating ``text,'' or ``compilation of test questions'' 
in the application. To register a revised version of a preexisting 
test, applicants may state ``revised secure test.''
    The redacted copy of the test should contain an unredacted copy of 
the title page for the test (if any), and a redacted copy of each page 
of questions. The number that has been assigned to each question (if 
any), and the page number that appears on each page of the test (if 
any) should be completely visible. Most of the content that appears on 
each page may be blocked out, provided that the applicant leaves a 
narrow vertical or diagonal strip of visible content. An example of an 
appropriate method for preparing a redacted copy has been provided in 
the new circular for secure tests. See Copyright Registration for 
Secure Tests (Circular 64).
    Applicants must upload the questionnaire and the redacted copy of 
the test to the electronic registration system; each item must be 
uploaded as a separate file. The file name for the questionnaire should 
include the term ``Questionnaire'' and the case number assigned to the 
claim. This eleven-digit number is automatically generated by the 
electronic registration system and it appears near the top of each 
screen of the online application. The file name for the redacted copy 
should match the title provided in response to questions 1 and 9 of the 
questionnaire.

B. Scheduling the Appointment

    Once the application, filing fee, questionnaire, and the redacted 
copy have been received, the Office will assign the claim to a Literary 
Division examiner. The examiner will review these items to determine if 
the work appears to be eligible for the secure test procedure, based on 
the following criteria:
    First and foremost, the work must be a ``test.'' Questions that are 
stored in--or randomly pulled from--an electronic database or a test 
bank cannot be registered as a secure test if the database or test bank 
is simply a medium for storing questions and does not represent an 
actual test.
    Second, under the longstanding regulatory definition, the test also 
must be administered under supervision at specified centers on 
scheduled dates. See 37 CFR 202.20(b)(4).\4\ A ``specified center'' is 
a place where test takers are physically assembled at the same time. 
For example, a ``test'' administered via a Web site to people located 
in their individual homes or offices would not be eligible for this 
procedure, both because a home or office would not qualify as a 
``specified center'' and because the tests presumably would not be 
administered ``under supervision.'' In contrast, a test administered 
via computer to test takers gathered at the same time at proctor-
monitored locations would qualify, even if the test is accessed through 
a secure Web site. In addition, the test must be administered ``under 
supervision,'' e.g., with test proctors or the like. These features are 
what, in the Office's estimation, most readily distinguish an ordinary 
test from a ``secure'' test that requires special registration 
procedures, including the acceptance of a redacted copy of the deposit. 
These features were common to all of the test publishers that 
originally requested this procedure as a matter of public policy, and 
these features continue to be employed in the administration of the 
secure tests that provided the foundation for this procedure. 42 FR 
59304 & n.2 (citing ``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'').
---------------------------------------------------------------------------

    \4\ The interim rule replaces the phrase ``specific dates'' in 
the current regulation with the more precise phrase ``scheduled 
dates.'' No substantive change is intended.
---------------------------------------------------------------------------

    If the test appears to be eligible for the secure test procedure, 
the examiner will contact the applicant and schedule an appointment to 
examine the test. But the fact that the examiner schedules an 
appointment does not necessarily mean that the work is eligible for the 
secure test procedure or that it will be registered. If at the time of 
the appointment, the examiner determines that the work does not meet 
the relevant legal and formal requirements, he or she will refuse to 
register the work as a secure test.\5\
---------------------------------------------------------------------------

    \5\ If the work appears to be eligible for registration under 
the normal examination procedures for a test, the examiner will ask 
the applicant to upload a complete, unredacted copy of the work, and 
he or she will change the effective date of registration to match 
the date that the unredacted copy is received.

---------------------------------------------------------------------------

[[Page 26853]]

C. Processing Time

    Secure test claims will be reviewed in the order they are received, 
and will not be given priority over other claims with an earlier filing 
date. If an applicant would like to expedite the examination of a 
particular test or the scheduling of an appointment, the applicant must 
submit a request for special handling, demonstrate that there is a 
compelling reason for the request (such as litigation or publication 
deadlines), and pay the additional fee for expedited service. But 
regardless of whether the applicant requests special handling, the date 
that the Office received all the required elements in proper form 
through the electronic registration system will retroactively become 
the effective date of registration if the application is approved after 
examination.

D. What To Bring to the Appointment

    On the day of the appointment, the applicant must bring the 
following materials to the Office:
    (i) A copy of the completed application.
    (ii) The nonrefundable secure test examination fee. This fee will 
be based on the amount of time that it takes to examine the test 
materials during the appointment, and it is in addition to the filing 
fee mentioned above. Both the filing fee and the examination fee are 
nonrefundable, regardless of whether the Office issues a certificate of 
registration for the test.
    (iii) A copy of the redacted version of the test that was uploaded 
to the electronic registration system.
    (iv) A signed declaration confirming that this redacted copy is 
identical to the redacted copy that was uploaded to the electronic 
registration system. Applicants may obtain a copy of this declaration 
from the Office's Web site at https://copyright.gov/forms/securetest-declaration.pdf.
    (v) An unredacted copy of the actual test that is administered to 
test takers at specified centers on scheduled dates.
    In all cases, applicants must bring a physical copy of the 
unredacted version of the test, and the content of the test must be 
completely visible so that it may be examined. The questions that 
appear in the unredacted copy should precisely match the questions that 
appear in the redacted copy. If the test is administered with test 
booklet(s), the applicant should bring one complete copy of those 
booklet(s).\6\ If it is administered at specified centers on scheduled 
dates with computers or other electronic devices, the applicant may 
bring one of the following items:
---------------------------------------------------------------------------

    \6\ As mentioned above, different versions of the same test 
cannot be registered together on one application. There is no group 
registration option for secure tests.
---------------------------------------------------------------------------

    (i) A printout containing a complete copy of the actual test; or
    (ii) An electronic file that contains a complete copy of the actual 
test. The file must be stored on a CD-ROM, DVD, flash drive, or other 
storage device. The applicant must bring a laptop or other electronic 
device that can be used to view the test materials. Providing access to 
an electronic copy available online or an electronic file stored solely 
on the applicant's device (rather than a separate storage device) is 
insufficient. In addition, the applicant should bring an appropriate 
container for the storage device, such as an envelope or jewel case.

E. In-Person Examination of Secure Tests

    The examiner will review the redacted and unredacted copies in a 
secure location in the presence of the applicant or his/her 
representative.\7\ When the examination is complete, the examiner will 
stamp the date of the appointment on the redacted and unredacted copies 
and will return them to the applicant. If the applicant brought test 
booklet(s) or a printout of the test, the specialist will stamp the 
first page of the test materials. If the applicant brought an 
electronic file stored on a flash drive or other storage device, the 
examiner will place the device in its container, stamp the date of the 
appointment on a label, apply that label to the container, and seal the 
container with tamper-proof tape. The signed declaration and the 
redacted copy that was uploaded to the electronic system will be 
retained by the Office.
---------------------------------------------------------------------------

    \7\ If the test is lengthy or if the applicant is bringing 
multiple tests to the appointment, the Office may assign two or more 
examiners to handle the claims. The number of examiners assigned to 
each claim will be determined solely by the Office. In such cases, 
the applicant must pay a separate examination fee for each staff 
member who participates in the examination.
---------------------------------------------------------------------------

    If the examiner determines that the relevant legal and formal 
requirements have been met, he or she will register the claim(s) and 
will add an annotation to the certificate such as: ``Basis for 
registration: Secure test examined under 37 CFR 202.13.'' The 
registration will be 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. In this respect, 
the interim rule will provide test publishers with the benefit of an 
earlier effective date of registration as compared to the current 
procedure.

III. Request for Comments

    The interim rule will go into effect 30 days after the publication 
of this notice in the Federal Register. Comments will be due 150 days 
thereafter. The Office decided to issue this rule without publishing an 
initial notice of proposed rulemaking for two reasons.
    First, this is a ``rule[ ] of agency organization, procedure, or 
practice.'' 5 U.S.C. 553(b)(3)(A). It does not ``alter the rights or 
interests of parties.'' JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 
(D.C. Cir. 1994). It merely ``alter[s] the manner in which the parties 
present themselves or their viewpoints to the agency.'' Id. Thus, 
notice and comment is not required under the Administrative Procedure 
Act.
    Second, the rule codifies many of the Office's existing procedures 
for examining secure tests. These procedures have been in place for 
more than thirty years, so interested parties should be familiar with 
them already. The rule does change the Office's current procedures in 
some respects, but there is good cause for making these changes 
effective on an interim basis: Doing so will give both the Office and 
interested parties an opportunity to see how the new procedures work in 
practice, and to consider whether these procedures should be modified 
in any respect before the Office issues a final rule. See 5 U.S.C. 
553(b)(3)(B).
* * * * *

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 202

    Copyright, Preregistration and Registration of Claims to Copyright.

Interim Regulation

    In consideration of the foregoing, the U.S. Copyright Office amends 
37 CFR parts 201 and 202 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.


0
2. In Sec.  201.3, revise paragraph (d)(5) to read as follows:

[[Page 26854]]

Sec.  201.3   Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (d) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(5) Secure test examining fee (per staff member per                  250
 hour)..................................................
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
3. The authority citation for part 202 continues to read as follows:

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


0
4. Add Sec.  202.13 to read as follows:


Sec.  202.13   Secure tests.

    (a) General. This section prescribes rules pertaining to the 
registration of secure tests.
    (b) Definitions. For purposes of this section--
    (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 following each administration.
    (2) A test is nonmarketed if copies of the test are not sold, but 
instead are distributed and used in such a manner that the test sponsor 
or publisher retains ownership and control of the copies.
    (3) A test is administered under supervision if test proctors or 
the equivalent supervise the administration of the test.
    (4) A specified center is a place where test takers are physically 
assembled at the same time.
    (c) Deposit requirements. Pursuant to the authority granted by 17 
U.S.C. 408(c)(1), the Register of Copyrights has determined that a 
secure test may be registered with identifying material, if the 
following conditions are met:
    (1) The applicant must complete and submit a standard application. 
The application may be submitted by any of the parties listed in Sec.  
202.3(c)(1).
    (2) The appropriate filing fee, as required by Sec.  201.3(c) of 
this chapter, must be included with the application or charged to an 
active deposit account.
    (3) The applicant must submit a redacted copy of the entire secure 
test. In addition, the applicant must complete and submit the 
questionnaire that is posted on the Copyright Office's Web site. 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 qualifies 
for the secure test procedure. If the work appears to be eligible, the 
Copyright Office will contact the applicant to schedule an appointment 
to examine an unredacted copy of the test under secure conditions.
    (4) On the appointed date, the applicant must bring the following 
materials to the Copyright Office:
    (i) A copy of the completed application.
    (ii) The appropriate examination fee, as required by Sec.  201.3(d) 
of this chapter.
    (iii) A copy of the redacted version of the secure test that was 
uploaded to the electronic registration system.
    (iv) A signed declaration confirming that the redacted copy 
specified in paragraph (c)(4)(iii) of this section is identical to the 
redacted copy that was uploaded to the electronic registration system.
    (v) An unredacted copy of the entire secure test.
    (5) The Copyright Office will examine the copies specified in 
paragraphs (c)(4)(iii) and (v) of this section in the applicant's 
presence. When the examination is complete, the Office will stamp the 
date of the appointment on the copies and will return them to the 
applicant. The Office will retain the signed declaration and the 
redacted copy that was uploaded to the electronic registration system.

0
5. Amend Sec.  202.20 as follows:
0
a. Revise paragraph (b)(3).;
0
b. Remove paragraph (b)(4);
0
c. Redesignate paragraphs (b)(5) and (6) as paragraphs (b)(4) and (5), 
respectively;
0
d. Remove ``, as amended by Pub. L. 94-553'' from newly redesignated 
paragraph (b)(4) and add a period in its place; and
0
e. Revise paragraph (c)(2)(vi).
    The revisions read as follows:


Sec.  202.20   Deposit of copies and phonorecords for copyright 
registration.

* * * * *
    (b) * * *
    (3) The term secure test has the meaning set forth in Sec.  
202.13(b).
* * * * *
    (c) * * *
    (2) * * *
    (vi) Tests. In the case of tests, and answer material for tests, 
published separately from other literary works, the deposit of one 
complete copy will suffice in lieu of two copies. In the case of any 
secure test the applicant may submit identifying material in lieu of 
one complete copy if the conditions set forth in Sec.  202.13(c) have 
been met.
* * * * *

    Dated: May 19, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-12021 Filed 6-9-17; 8:45 am]
 BILLING CODE 1410-30-P