Rules and Regulations. Temporary final rule

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BILLING CODE 6735-01-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD13-06-038] RIN 1625-AA08 Special Local Regulations, Seattle Seafair, Lake Washington, WA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing temporary special local regulations

(SLR)for the Seattle Seafair, Lake Washington, Washington. These special local regulations limit the movement of non-participating vessels in the regulated race area and provide for a viewing area for spectator craft. This rule is needed to provide for the safety of life on navigable waters during Seafair. The rule adds four hours to the effective time period of the existing SLR to accommodate the addition of a fireworks display in this year's Seafair. DATES: This rule is effective from 8 p.m.

(PDT)until 11:59 p.m.

(PDT)on August 5, 2006 unless sooner cancelled by the Captain of the Port. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket [CGD13-06-038] and are available for inspection or copying at the Waterways Management Division, Coast Guard Sector Seattle, 1519 Alaskan Way South, Seattle, WA 98134, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Jessica Hagen, c/o Captain of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington 98134,

(206)217-6200. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. The Coast Guard was not notified about the fireworks show until July 19, 2006. Under 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication in the **Federal Register** . Publishing a NPRM would be contrary to public interest since immediate action is necessary to ensure the safety of commercial and recreational vessels in the vicinity of the fireworks on the date and times this rule will be in effect. If normal notice and comment procedures were followed, this rule would not become effective until after the date of the event. On July 2, 2001, the Coast Guard published a final rule (66 FR 34822) modifying the regulations in 33 CFR 100.1301 for the safe execution of the Seattle Seafair Unlimited Hydroplane races on the waters of Lake Washington. This SLR provides for a regulated area to protect spectators while providing unobstructed vessel traffic lanes to ensure timely arrival of emergency response craft. Movements are regulated for all vessels in the area as described under 33 CFR 100.1301 or unless otherwise regulated by the COTP or his designee. This temporary final rule is required to increase the length of time affected by the regulation. Background and Purpose For more than 50 years Seafair on Lake Washington has been a Pacific Northwest tradition, entertaining millions of people over that period. However, this entertaining event involves risks to both spectators and participants. During Seafair, the marine congestion associated with the number of boats, swimmers, and spectators on shore challenges even the most experienced seaman. These conditions necessitate the maintenance of a regulated area to protect spectators while providing unobstructed vessel traffic lanes to ensure timely arrival of emergency response craft. The Coast Guard is establishing special local regulations to provide for the safety of boaters during a fireworks display. The Coast Guard is establishing these regulations to protect vessels and persons from the hazards associated with the fallout of burning embers that will be generated by the fireworks. The regulated area is also intended to protect boaters from the hazards associated with excessive vessel congestion associated with Seafair's activities. Discussion of Rule This rule will control the movement of all vessels in a regulated area on Lake Washington as indicated in section 2 of this Temporary Final Rule. This rule adds four hours to the effective time period of the existing SLR to accommodate the addition of a fireworks display for this year's Seafair. The Coast Guard, through this action, intends to promote the safety of personnel and vessels in the area. The regulated areas will be enforced by the U.S. Coast Guard. The Captain of the Port may be assisted in the enforcement of the regulations by other federal, state, or local agencies. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This change slightly modifies existing safety regulations, and should not effect the economic activities of any Seafair participant or spectator. The regulation is established for the benefit and safety of the recreational boating public, and any negative recreational boating impact is offset by the benefits of allowing the fireworks event to occur. This rule is effective from 8 p.m. until 11:59 p.m. on August 5, 2006. For the above reasons, the Coast Guard does not anticipate any significant economic impact. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this temporary rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit this portion of Lake Washington during the time this regulation is in effect. The regulations will not have a significant economic impact due to its short duration and the limited area of enforcement. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the 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). Collection of Information This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments The Coast Guard recognizes the rights of Native American Tribes under the Stevens Treaties. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies to mitigate tribal concerns. We have determined that safety zones and fishing rights protection need not be incompatible. We have also determined that this Temporary Final 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. Nevertheless, Indian Tribes that have questions concerning the provisions of this Temporary Final Rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT . Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard amends part 100 of Title 33, Code of Federal Regulations, as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233; Department of Homeland Security Delegation No. 0170.1. 2. From 8 p.m. until 11:59 p.m. on August 5, 2006, a temporary § 100.T13-023 is added to read as follows: § 100.T13-023 Special Local Regulations, Seattle Seafair, Lake Washington, WA.

(a)This section is in effect from 8 p.m. until 11:59 p.m. on August 5, 2006 unless sooner cancelled by the Captain of the Port.

(b)The area where the Coast Guard will restrict general navigation by this regulation during the hours it is in effect is: The waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.

(c)The area described in paragraph

(b)of this section has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).

(d)The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Auxiliary Coast Guard vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the period this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.

(e)Only authorized vessels may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by Coast Guard Officers or Petty Officers.

(f)During the times in which the regulation is in effect, swimming, wading, or otherwise entering the water in Zone I by any person is prohibited.

(g)During the times in which the regulation is in effect, any person swimming or otherwise entering the water in Zone II shall remain within ten

(10)feet of a vessel.

(h)During the times this regulation is in effect, rafting to a log boom will be limited to groups of three vessels.

(i)During the times this regulation is in effect, up to six

(6)vessels may raft together in Zone II if none of the vessels are secured to a log boom.

(j)During the times this regulation is in effect, only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.

(k)Vessels permitted to proceed through either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven

(07)miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.

(l)Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven

(07)miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.

(m)A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both. The Coast Guard may be assisted by other Federal, state and local law enforcement agencies, as well as official Seafair event craft. Dated: July 26, 2006. R. Houck, Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard District. [FR Doc. E6-12582 Filed 8-3-06; 8:45 am] BILLING CODE 4910-15-P s DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [CGD05-06-042] RIN 1625-AA08 Special Local Regulations for Marine Events; Susquehanna River, Port Deposit, MD AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is establishing permanent special local regulations for “Ragin' on the River”, a power boat race held annually each Labor Day weekend on the waters of the Susquehanna River adjacent to Port Deposit, Maryland. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the Susquehanna River adjacent to Port Deposit, Maryland during the power boat race. DATES: This rule is effective August 21, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket (CGD05-06-042) and are available for inspection or copying at Commander (dpi), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia 23704-5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Inspections and Investigations Branch, at

(757)398-6204. SUPPLEMENTARY INFORMATION: Regulatory Information On May 4, 2006, we published a notice of proposed rulemaking

(NPRM)entitled Special Local Regulations for Marine Events; Susquehanna River, Port Deposit, MD in the **Federal Register** (71 FR 26287). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of the Susquehanna River during the marine event thus ensuring that the maritime public is protected from any potential harm associated with such an event. Background and Purpose Annually, during Labor Day weekend, the Port Deposit, Maryland Chamber of Commerce sponsors the “Ragin' on the River” power boat race, on the waters of the Susquehanna River. The event consists of approximately 60 inboard hydroplanes and runabouts racing in heats counter-clockwise around an oval racecourse. A fleet of spectator vessels gather nearby to view the competition. Due to the need for vessel control during the event, vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Discussion of Comments and Changes The Coast Guard did not receive comments in response to the notice of proposed rulemaking

(NPRM)published in the **Federal Register** . Accordingly, the Coast Guard is establishing temporary special local regulations on specified waters of the Susquehanna River, Port Deposit, Maryland. The event enforcement time was adjusted to start 1 hour earlier than what was indicated in the NPRM. Enforcement of this section was changed from 11:30 a.m. to 10:30 a.m to allow the Coast Guard Patrol Commander ample time to clear the regulated area prior to the event. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation prevents traffic from transiting a portion of the Susquehanna River adjacent to Port Deposit, Maryland during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, area newspapers and radio stations so mariners can adjust their plans accordingly. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule will effect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in this portion of the Susquehanna River during the event. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only a short period, annually from 10:30 a.m. to 6:30 p.m. on Saturday and Sunday of Labor Day weekend. Although the regulated area will apply to the entire width of the river, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area during the event, vessels shall proceed at the minimum speed necessary to maintain a safe course that reduces wake near the race course. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Dennis Sens, Project Manager, Inspections and Investigations Branch, at

(757)398-6204. 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. Collection of Information This rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 or more in any one year. Though this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” is not required for this rule. List of Subjects in 33 CFR Part 100 Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows: PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority: 33 U.S.C. 1233, Department of Homeland Security Delegation No. 0170.1. 2. Add § 100.535 to read as follows: § 100.535 Susquehanna River, Port Deposit, Maryland.

(a)*Regulated area.* A regulated area is established for the waters of the Susquehanna River, adjacent to Port Deposit, Maryland, from shoreline to shoreline, bounded on the south by the U.S. I-95 fixed highway bridge, and bounded on the north by a line running southwesterly from a point along the shoreline at latitude 39°36′22″ N, longitude 076°07′08″ W, thence to latitude 39°36′00″ N, longitude 076°07′46″ W. All coordinates reference Datum NAD 1983.

(b)*Definitions.*

(1)Coast Guard Patrol Commander means a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the Commander, Coast Guard Sector Baltimore.

(2)*Official Patrol* means any vessel assigned or approved by Commander, Coast Guard Sector Baltimore with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

(3)*Participant* means all vessels participating in the “Ragin' on the River” power boat race under the auspices of the Marine Event Permit issued to the event sponsor and approved by Commander, Coast Guard Sector Baltimore.

(c)*Special local regulations.*

(1)Except for event participants and persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area.

(2)The operator of any vessel in the regulated area must:

(i)Stop the vessel immediately when directed to do so by any official patrol.

(ii)Proceed as directed by any official patrol.

(iii)All persons and vessels must comply with the instructions of the Official Patrol. The operator of a vessel in the regulated area shall stop the vessel immediately when instructed to do so by the Official Patrol and then proceed as directed. When authorized to transit the regulated area, all vessels shall proceed at a minimum safe speed necessary to maintain a safe course that minimizes wake near the race course.

(d)This section will be enforced annually from 10:30 a.m. to 6:30 p.m. on Saturday and Sunday of Labor Day weekend. If the races are postponed due to weather, then the special local regulations will be enforced during the same time period on Monday, Labor Day. A notice of enforcement of this section will be published annually in the **Federal Register** and disseminated through the Fifth District Local Notice to Mariners and marine safety radio broadcasts. Dated: July 17, 2006. S.H. Ratti, Captain, U.S. Coast Guard, Commander, Fifth Coast Guard District, Acting. [FR Doc. E6-12657 Filed 8-3-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD01-06-017] RIN 1625-AA00 Safety Zone; Beverly Homecoming Fireworks, Beverly, MA AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone for the Beverly Homecoming Fireworks Display on August 6, 2006 in Beverly, Massachusetts, temporarily closing all waters of Beverly Harbor within a four hundred

(400)yard radius of the fireworks barge located at approximate position 42°33.35″ N, 070°52.00″ W. This zone is necessary to protect the maritime public from the potential hazards posed by a fireworks display. The safety zone temporarily prohibits entry into or movement within this portion of Beverly Harbor during its closure period. Entry into this zone is prohibited unless authorized by the Captain of the Port, Boston, Massachusetts. DATES: This rule is effective from 8:30 p.m. until 10 p.m. on August 6, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket CGD01-06-017 and are available for inspection or copying at Sector Boston, 427 Commercial Street, Boston, MA, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Chief Petty Officer Paul English, Sector Boston, Waterways Management Division, at

(617)223-5456. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the logistics with respect to the fireworks presentation were not presented to the Coast Guard with sufficient time to draft and publish an NPRM. Any delay encountered in this regulation's effective date would be contrary to the public interest since the safety zone is needed to prevent traffic from transiting a portion of Beverly Harbor during the fireworks display and to provide for the safety of life on navigable waters. For the same reasons, the Coast Guard finds, under 5 U.S.C. 553(d)(3), that good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . The zone should have a minimal negative impact on vessel transits in Beverly Harbor because vessels will be excluded from the area for only one and one half hours, and vessels can still operate in other areas of the harbor during the event. Background and Purpose The City of Beverly, Massachusetts is holding a fireworks display in honor of the Beverly Homecoming. This rule establishes a temporary safety zone on the waters of Beverly Harbor within a four hundred

(400)yard radius of the fireworks barge located at approximate position 42°33.35″ N, 070°52.00″ W. This safety zone is necessary to protect the life and property of the maritime public from the potential dangers posed by this event. It will protect the public by prohibiting entry into or movement within the proscribed portion of Beverly Harbor during the fireworks display. Marine traffic may transit safely outside of the zone during the effective period. The Captain of the Port does not anticipate any negative impact on vessel traffic due to this event. Public notifications will be made prior to and during the effective period via safety marine information broadcasts and Local Notice to Mariners. Discussion of Rule This rule is effective from 8:30 p.m. until 10 p.m. on August 6, 2006. Marine traffic may transit safely outside of the safety zone in the majority of Beverly Harbor during the event. Given the limited time-frame of the effective period of the zone, the size of the harbor and the size of the zone itself, the Captain of the Port anticipates minimal negative impact on vessel traffic due to this event. Public notifications will be made prior to and during the effective period via Local Notice to Mariners and marine information broadcasts. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule will prevent traffic from transiting a portion of Beverly Harbor during this event, the effect of this rule will not be significant for several reasons: vessels will be excluded from the area of the safety zone for only one and one half hours, although vessels will not be able to transit the harbor in the vicinity of the zone, they will be able to operate in other areas of the harbor during the effective period; and advance notifications will be made to the local maritime community by marine information broadcasts and Local Notice to Mariners. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Beverly Harbor from 8:30 p.m. until 10 p.m. on August 6, 2006. This safety zone will not have a significant economic impact on a substantial number of small entities for the reason described under the Regulatory Evaluation section. Assistance for Small Entities Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 [Pub. L. 104-121], we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call Chief Petty Officer Paul English, Sector Boston, Waterways Management Division, at

(617)223-5456. 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). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 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. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. Indian Tribal Governments 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction, from further environmental documentation. This rule fits the category selected from paragraph (34)(g), as it would establish a safety zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES . 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: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add temporary § 165.T06-017 to read as follows: § 165.T-01-017 Safety Zone: Beverly Homecoming Fireworks, Beverly, MA.

(a)*Location.* The following area is a safety zone: All waters of Beverly Harbor, from surface to bottom, within a four hundred

(400)yard radius of the fireworks barge located at approximate position 42°33.35″ N, 070°52.00″ W.

(b)*Effective Date.* This rule is effective from 8:30 p.m. until 10 p.m. on August 6, 2006.

(c)*Definitions.* As used in this section *Designated representative* means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port (COTP).

(d)*Regulations.*

(1)In accordance with the general regulations in 165.23 of this part, entry into or movement within this zone by any person or vessel is prohibited unless authorized by the Captain of the Port (COTP), Boston or the COTP's designated representative.

(2)The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.

(3)Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or the COTP's designated representative. Dated: July 24, 2006. James L. McDonald, Captain, U.S. Coast Guard, Captain of the Port, Boston, Massachusetts. [FR Doc. E6-12585 Filed 8-3-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [CGD09-06-135] RIN 1625-AA00 Safety Zone; Pentwater Homecoming Fireworks, Pentwater, MI AGENCY: Coast Guard, DHS. ACTION: Temporary final rule. SUMMARY: The Coast Guard is establishing a temporary safety zone for the Pentwater Homecoming Fireworks, Pentwater, Michigan. This safety zone is necessary to safeguard vessels and spectators from hazards associated with fireworks displays. This rule is intended to restrict vessel traffic from a portion of Lake Michigan. DATES: This safety zone is effective from 9 p.m. to 11 p.m. on August 12, 2006. ADDRESSES: Documents indicated in this preamble as being available in the docket, are part of docket CGD09-06-135 and are available for inspection or copying at U.S. Coast Guard Sector Lake Michigan between 7 a.m. (local) and 3:30 p.m. (local), Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Chief Warrant Officer Brad Hinken, U.S. Coast Guard Sector Lake Michigan, at

(414)747-7154. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking

(NPRM)for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. The permit application was not received in time to publish an NPRM followed by a final rule before the effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making this rule effective less than 30 days after publication in the **Federal Register** . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property. The Coast Guard has not received any complaints or negative comments previously with regard to this event. Background and Purpose This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with a fireworks display. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the Captain of the Port Lake Michigan has determined fireworks launches in close proximity to watercraft pose significant risk to public safety and property. The likely combination of large numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks. Discussion of Rule A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Pentwater Homecoming fireworks display. The fireworks display will occur between 9 p.m. and 11 p.m. on August 12, 2006. The safety zone will encompass all waters of Lake Michigan within a 1000-foot radius of the fireworks launching site located on the north break wall in position 43°46.56″ N/086°26.38″ W (DATUM: NAD 83). All persons and vessels must comply with the instructions of the Captain of the Port Lake Michigan or his designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Lake Michigan or his designated on-scene representative. The Captain of the Port Lake Michigan may be contacted via VHF Channel 16. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based upon the size and location of the safety zone within the waterway. Recreational vessels may transit through the safety zone with permission from the Captain of the Port Lake Michigan or his designated on-scene representative. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of the Lake Michigan off Pentwater, Michigan, between 9 p.m. and 11 p.m. on August 12, 2006. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only two hours for one event and vessels can safely pass outside the safety zone during the event. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. 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). Collection of Information This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 or more in any one year. Though this rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES . 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 proposes to amend 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: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. A new temporary § 165.T09-135 is added to read as follows: § 165.T09-135 Safety Zone; Pentwater Homecoming Fireworks, Pentwater, Michigan.

(a)*Location.* The following area is a Safety Zone: All waters of Lake Michigan within a 1000-foot radius of the fireworks launching site located on the north break wall in position 43°46.56″ N/086°26.38″ W (DATUM: NAD 83).

(b)*Effective Period.* This safety zone is effective from 9 p.m. until 11 p.m. on August 12, 2006.

(c)*Regulations.* In accordance with the general regulations in Section 165.23 of this part, entry into this zone is subject to the following requirements:

(1)This safety zone is closed to all marine traffic, except as may be permitted by the Captain of the Port or his designated on-scene representative.

(2)The “designated on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Lake Michigan, to act on his behalf. The designated on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel.

(3)Vessel operators desiring to enter or operate within the Safety Zone shall contact the Captain of the Port or his designated on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the Safety Zone must comply with all directions given to them by the Captain of the Port or his designed on-scene representative.

(4)The Captain of the Port may be contacted by telephone via the Sector Lake Michigan Operations Center at

(414)747-7182 during working hours. Vessels assisting in the enforcement of the Safety Zone may be contacted on VHF-FM channels 16. Dated: July 26, 2006. B.C. Jones, Captain, U.S. Coast Guard, Captain of the Port Sector Lake Michigan. [FR Doc. E6-12658 Filed 8-3-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF COMMERCE Patent and Trademark Office 37 CFR Part 1 [Docket No.: PTO-P-2006-0007] RIN 0651-AC02 Clarification of Filing Date Requirements for Ex Parte and Inter Partes Reexamination Proceedings AGENCY: United States Patent and Trademark Office, Commerce. ACTION: Final rule. SUMMARY: The United States Patent and Trademark Office (Office) is, in this final rule making, revising the rules of practice relating to the filing date requirements for *ex parte* and *inter partes* reexamination proceedings for consistency with the provisions of the patent statute governing *ex parte* and *inter partes* reexamination proceedings, and to permit the Office to have the full statutory three months to address a request for reexamination that is complete. The Office is specifically revising the rules to require that a request for *ex parte* reexamination or for *inter partes* reexamination must meet all the applicable statutory and regulatory requirements before a filing date is accorded to the request for *ex parte* reexamination or for *inter partes* reexamination. DATES: *Effective Date:* August 4, 2006. *Applicability Date:* The changes in this final rule apply to any request for reexamination ( *ex parte* or *inter partes* ) filed on or after March 27, 2006. FOR FURTHER INFORMATION CONTACT: By telephone—Kenneth M. Schor, at

(571)272-7710; by mail addressed to U.S. Patent and Trademark Office, Mail Stop Comments—Patents, Commissioner for Patents, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of Kenneth M. Schor; by facsimile transmission to

(571)273-7710 marked to the attention of Kenneth M. Schor; or by electronic mail message over the Internet addressed to *kenneth.schor@uspto.gov* . SUPPLEMENTARY INFORMATION: The United States Patent and Trademark Office (Office) is revising the rules of practice in title 37 of the Code of Federal Regulations

(CFR)to require that a request for *ex parte* reexamination or for *inter partes* reexamination must meet all the applicable statutory requirements in 35 U.S.C. 302 or 311 (respectively) and the regulatory requirements in § 1.510 or § 1.915 (respectively) before a filing date is accorded to the request for *ex parte* reexamination or for *inter partes* reexamination. Thus, the Office is amending the rules to clearly require compliance with all the requirements of filing an *ex parte* reexamination request set forth in § 1.510 before a filing date will be assigned to an *ex parte* reexamination request, and to clearly require compliance with all the requirements of filing an *inter partes* reexamination request set forth in § 1.915 before a filing date will be assigned to an *inter partes* reexamination request. The Office published an interim rule revising the rules of practice to implement this revision of the rules. *See Clarification of Filing Date Requirements for Ex Parte and Inter Partes Reexamination Proceedings* , 71 FR 9260 (February 23, 2006), 1304 *Off. Gaz. Pat. Office* 95 (March 21, 2006) (interim rule). This notice adopts the interim revision as a final revision of the rules of practice, while making stylistic and non-substantive changes to the relevant rules, which changes are discussed below. Section 1.510 sets forth the requirements for the content of a request for *ex parte* reexamination. Section 1.915 sets forth the requirements for the content of a request for *inter partes* reexamination. Former § 1.510(d) stated that the filing date of a request for *ex parte* reexamination is “(1) The date on which the request including the entire fee for requesting reexamination is received in the Patent and Trademark Office; or

(2)The date on which the last portion of the fee for requesting reexamination is received.” In like manner, former § 1.919(a) stated that “[t]he filing date of a request for *inter partes* reexamination is the date on which the request satisfies the fee requirement of § 1.915(a).” Given the former rule language, it may have appeared that compliance with the provisions of § 1.510(b) or § 1.915(b) was not required for obtaining a filing date in reexamination. However, 35 U.S.C. 302 (for *ex parte* reexamination) explicitly requires that “[t]he request must set forth the pertinency and manner of applying cited prior art to every claim for which reexamination is requested.” Likewise, 35 U.S.C. 311(b) (for *inter partes* reexamination) explicitly requires that the request must “include the identity of the real party in interest” and “set forth the pertinency and manner of applying cited prior art to every claim for which reexamination is requested.” Reexamination requesters did not always comply with these statutory requirements when submitting requests for reexamination. Furthermore, the information missing due to a lack of compliance with § 1.510(b) or with § 1.915(b) was often relevant to the decision on whether to grant the request for reexamination. This presented a difficulty for the Office in view of the statutory requirements of 35 U.S.C. 303 (for *ex parte* reexamination) and 35 U.S.C. 312 (for *inter partes* reexamination) that the decision on the request must be issued within three months of the filing date of the request for reexamination, because the process of notifying the requester of the non-compliance and obtaining the missing information may very well extend beyond the three-month statutory deadline, or the information may be provided so close to the deadline that there is not sufficient time to properly evaluate it. To address this problem, §§ 1.510(c) and

(d)were revised via interim rule to clearly require compliance with all the requirements of §§ 1.510(a) and

(b)in order to obtain an *ex parte* reexamination filing date (and a decision on the request for reexamination). Likewise, § 1.919(a) was revised to clearly require compliance with all the requirements of § 1.915 in order to obtain an *inter partes* reexamination filing date. This notice adopts the substance of the interim rule as final. It is to be noted that these changes should not have a significant impact on reexamination requesters, because the filing date in a reexamination proceeding does not have the same legal significance as the filing date in other Office patent proceedings ( *cf* . 35 U.S.C. 102(b)). The rules now simply clearly recite that the statutory and regulatory requirements for a request for reexamination must be fulfilled before a filing date will be assigned. Unless otherwise stated, the present final rule simply adopts, or essentially adopts, the regulatory language of the interim rule. Sections 1.510(c) and 1.915(d) have been revised for parallelism purposes from the text that appears in the interim rule. Anything that is more than sentence structure, grammar, or style is identified in the discussion below. Section-by-Section Discussion *Section 1.11:* Section 1.11(c) is revised to provide that any request for reexamination “for which all the requirements of § 1.510 or § 1.915 have been satisfied” will be announced in the *Official Gazette* . Previously, § 1.11(c) provided that all requests for reexamination “for which the fee under § 1.20(c) has been paid” would be announced in the *Official Gazette* . This change was inadvertently omitted in the interim rule, but is not one of substance. As per the interim rule and this final rule, where all the requirements of § 1.510 or § 1.915 have not been satisfied, a request filing date is not assigned. Obviously, the Office cannot announce the “date of the request * * * and the examining group to which the reexamination is assigned,” since these do not exist until the requirements of § 1.510 or § 1.915 have been satisfied. *Section 1.510:* Section 1.510(c) is revised to provide that if a request for *ex parte* reexamination does not:

(1)Include the fee for requesting *ex parte* reexamination, and

(2)comply with all the requirements of § 1.510(b); then the person identified as requesting reexamination will be notified and will generally be given an opportunity to complete the request within a specified time. If the request is not completed within the time specified, the request will not be granted a filing date and no decision on the request will be made. The request may be placed in the patent file as a citation if it complies with the requirements of § 1.501. Deleted from former § 1.510(c) (as it existed prior to the interim rule) is the sentence: “If the fee for requesting reexamination has been paid but the defect in the request is not corrected within the specified time, the determination whether or not to institute reexamination will be made on the request as it then exists.” Section 1.510(c) states that the requester will “generally” be given an opportunity to complete the request, because, in some instances, it may not be practical, or even possible, to provide an opportunity for completion of the request. For example, the request might be submitted anonymously (although such is not proper), or without an address, or with an inoperative address. In such instances, the requester would be notified of the incomplete request by publication in the *Official Gazette* , but an opportunity to complete the request would not be provided. Section 1.510(d) is revised to provide that the filing date of the request for an *ex parte* reexamination request is the date on which the request satisfies all the requirements of § 1.510. Until that point, the request for reexamination is not complete. In the interim rule, the language employed was “the date on which the request satisfies all the requirements of paragraphs

(a)and

(b)of this section.” The language now provided is “the date on which the request satisfies all the requirements of this section.” This language is used for consistency with § 1.919 which states, as a result of the interim rule, “[t]he filing date of a request for *inter partes* reexamination is the date on which the request satisfies all the requirements for the request set forth in § 1.915.” *Section 1.915:* Section 1.915(d) is revised to provide that if a request for *inter partes* reexamination does not

(1)include the fee for requesting *inter partes* reexamination, and

(2)comply with all the requirements of § 1.915(b), then the person identified as requesting reexamination will be notified and will generally be given an opportunity to complete the request within a specified time. The interim rule inadvertently did not include, in the text of § 1.915(d), that the requester will be notified where the complete fee for requesting *inter partes* reexamination required by paragraph

(a)was not provided, though it was included in the interim rule preamble. That omission has been rectified. If the request is not completed within the time specified, the request will not be granted a filing date and no decision on the request will be made. Section 1.915(d) stated, prior to the change made via the interim rule, that the reexamination proceeding may be vacated under this circumstance. Based on the revision to § 1.919(a) set forth below, however, the *inter partes* request will not be granted a filing date under this circumstance in the first place; thus, there will be no reexamination proceeding to vacate. Section 1.915(d) is revised to provide that, where the request was not given a filing date, the request will be placed in the patent file as a citation, if it complies with the requirements of § 1.501. This was not present in the interim rule, and conforms § 1.915(d) with § 1.510(c). Section 1.915(d) states that the requester will “generally” be given an opportunity to complete the request, because, in some instances, it may not be practical, or even possible, to provide an opportunity for completion of the request (see the discussion of § 1.510(c)). *Section 1.919:* Section 1.919(a) is revised to require that the request for *inter partes* reexamination must satisfy all the requirements for the request set forth in § 1.915, prior to assignment of a filing date. Until that point, the request for *inter partes* reexamination is not complete. *Response to comments:* The Office received one set of written comments from a patent practitioner in response to the interim rule. The comments, and the Office's response to the comments, now follow: The commenter stated, in support of the change made to the rules, that “[t]he Interim Rule is well-merited for the reasons stated in on pages 9260-61 of the notice. The Office deserves a full three months in which to decide whether there is a substantial new question of patentability, and no examiner should be rushed into a decision because the requester failed to comply with the statute or rules.” The commenter then pointed out one implementation concern, as follows: “The rule should be easy to apply, with one potential exception—the statement of the pertinency and manner of applied cited prior art for every claim that is requested. See 35 U.S.C. 302, 311(b)(2); 37 CFR 1.510(b)(1)-(2), 1.915(b)(3). A request may initially appear (on intake) to contain this statement, but closer review (by the examiner) may reveal that the statement is not actually there. Under the Interim Rule, the filing date “is the date on which the request satisfies all the requirements for the request set forth in [the rule]”. Thus, one might read the rule as saying that if a filing date is assigned, the Office has decided that the required statement is present, and an examiner may not revisit the issue. * * * In these situations, the examiner should be able to independently decide that the request fails to comply with the statute and rules. I therefore suggest that the rule be interpreted to allow the examiner to do this.” This comment is adopted to the extent that the examiner is permitted, by Office procedure, to independently assert to a deciding official of the Office that the request fails to comply with the statute and/or rules, even after a reexamination filing date is assigned to a request. The deciding Official will then evaluate the examiner's assertion, and will decide whether the filing date that was assigned should be vacated. This point has been addressed in the internal procedure established by the Office to implement the revision of the rules made via this rule. Such procedure will be described below in this final rule, and will be incorporated into the *Manual of Patent Examining Procedure* in its next revision. The commenter further pointed out that the interim rule “describes the Interim Rule as mandating compliance with ‘the statutory requirements’ before the Office will assign a filing date. But the specific language of the interim rule [preamble] mandates compliance with rules—37 CFR 1.510(b) and 1.915(b)—and does not mention the statute. Those rules include non-statutory requirements, e.g., an *inter partes* requester's certificate of service on the patent owner, and an *inter partes* requester's certificate of non-estoppel. *See* 37 CFR 1.915(b)(6)-(7). While these rules are sensible and easy to meet, it would be more accurate to describe the Interim Rule as mandating compliance with ‘statutory and regulatory requirements’ before the Office will assign a filing date.” This comment is adopted, and the language is revised as set out in the preamble of this final rule. *Office Procedure to Implement the Revision of the Rules Made via this Final Rule:* A request for reexamination is no longer assigned a filing date, upon receipt of the request in the Central Reexamination Unit (CRU). Rather, the CRU Legal Instrument Examiners

(LIE)and Paralegals will check each request for compliance with the reexamination filing date requirements, prior to the assigning of a filing date. In order to obtain a reexamination filing date, the request papers must include all of the following:

(1)The complete reexamination fee. For *ex parte* reexamination, this is currently set at $2,520.00 in § 1.20(c)(1). For *inter partes* reexamination, this is currently set at $8,800.00 in § 1.20(c)(2).

(2)A statement pointing out *each* substantial new question of patentability based on the cited patents and publications (i.e., the cited prior art or double patenting art).

(3)An identification of *every* claim for which reexamination is requested.

(4)A detailed explanation of how *all* of the cited documents are applied to the claims for which reexamination is requested. For each identified substantial new question of patentability (SNQ), the request must explain how *all* of the cited documents identified for that SNQ are applied to meet/teach the claim limitations to thus establish the identified SNQ.

(5)A legible copy of *every* patent or printed publication relied upon or referred to in the request. (To conform to current practice, this provision is not being enforced to require copies of U.S. patents and U.S. patent publications; the provision is deemed waived to that extent.) It is to be noted that the required “copy of every patent or printed publication” is construed by the Office to be a legible copy, since a non-legible copy cannot be used. Any copy of a patent or printed publication received by the Office that is illegible will not be accepted, and will be deemed to have not been received by the Office.

(6)Some translation (at least of the relevant portion(s)) of any non-English language patent or printed publication.

(7)A legible copy of the entire patent to be reexamined. The copy must include the front face, drawings, and specification/claims (in double column format) of the printed patent, and each page must be plainly written on only one side of a sheet of paper.

(8)A legible copy of any disclaimer, certificate of correction, or reexamination certificate issued for the patent, each page plainly written on only one side of a sheet of paper.

(9)If the request is not filed by the patent owner—A certificate of service on the patent owner at the address as provided for in § 1.33(c). The name and address of the party served must be given in the certificate of service. If service was not possible, a duplicate copy of the request papers must be supplied to the Office together with a factual explanation of what efforts were made to effect service, and why they were not successful.

(10)If the request is filed by an attorney/agent and identifies another party on whose behalf the request is being filed, then a power of attorney must be attached, or the attorney/agent must be acting in a representative capacity pursuant to § 1.34. For *inter partes* reexamination, the request papers must also include—

(11)A certification by the requester that the estoppel provisions of § 1.907 do not prohibit the *inter partes* reexamination being requested.

(12)A statement identifying the real party in interest for whom (on whose behalf) the request is being filed. If it is determined that the request fails to meet one or more of the filing date requirements, the person identified as requesting reexamination will be so notified and will be given an opportunity to complete the requirements of the request within a specified time (generally thirty days). The new Office form used to provide the notification is a “Notice of Failure to Comply with * * * Reexamination Request Filing Requirements.” If after receiving a “Notice of Failure to Comply with * * * Reexamination Request Filing Requirements,” the requester does not remedy the defects in the request papers that are pointed out, then the request papers will not be given a filing date, and a control number will not be assigned. The simplest case of a failure to remedy the defect(s) in the Notice is where the requester does not timely respond to the Notice. The other case is where requester does timely respond, but the response does not cure the defect(s) identified to requester and/or the response introduces a new filing date defect or deficiency. If the requester timely responds to the Notice, then the CRU LIE and Paralegal will check the request, as supplemented by the response, for correction of all non-compliant items identified in the Notice. If any identified non-compliant item has not been corrected, then a filing date (and a control number) will not be assigned to the request papers. It is to be noted that a single failure to comply with the “Notice of Failure to Comply with * * * Reexamination Request Filing Requirements” will ordinarily result in the reexamination request not being granted a filing date. Absent extraordinary circumstances (or some minor non-compliant item that can be rectified by a phone call which can be made at the Office's sole discretion), requester will be given only one opportunity to correct the non-compliance, i.e., only one opportunity for compliance with the Notice. Similarly, if the response introduces a new filing date defect or deficiency into the request papers, then the reexamination request will not be granted a filing date absent extraordinary circumstances. If the request papers are not timely made filing-date-compliant in response to the Office's Notice of Failure to Comply with * * * Reexamination Request Filing Requirements, then the LIE will prepare a “Notice of Disposition of * * * Reexamination Request.” This notice will point out the disposition of the request papers (whether they are treated as a § 1.501 submission or discarded) and why. After a filing date is assigned to the reexamination control number, the patent examiner reviews the request to decide whether to order the granting or denial of reexamination. If, in the process of reviewing the request, the examiner notes a non-compliant item not earlier recognized, then the examiner will then inform an appropriate deciding official of the Office. Upon confirmation of the existence of any such non-compliant item(s), a decision vacating the assigned reexamination filing date will be issued. In the decision, the requester will be notified of the non-compliant item(s) and given time to correct the non-compliance. Only *one* opportunity will be given to comply with the notice to the requester included in the decision vacating the filing date, unless:

(1)Extraordinary circumstances exist, or

(2)there are only a few minor non-compliant items that can be rectified by a phone call, in which case such a phone call may be made; however, that is at the Office's sole discretion. The requester must completely respond to the notice provided in the Office's decision vacating the filing date by rectifying all identified defects in the request papers without adding any new defect. If the third party requester does not timely and completely respond to the Office's decision vacating the filing date, the Office will issue a decision pointing out the disposition of the request papers (whether treated as a § 1.501 submission or discarded) and why. If the third party requester does timely and completely respond to the Office's decision vacating the filing date, a new filing date will be assigned to the proceeding, as of the date the requester's response was received. Rule Making Considerations Administrative Procedure Act The changes in this final rule merely revise the rules of practice (§§ 1.510 and 1.915) to require that a request for *ex parte* reexamination or for *inter partes* reexamination meets the requirements in 35 U.S.C. 302 and 311 and regulations for a request for *ex parte* reexamination or for *inter partes* reexamination, before a filing date is accorded to the request for *ex parte* reexamination or for *inter partes* reexamination. Therefore, these rule changes involve interpretive rules, or rules of agency practice and procedure under 5 U.S.C. 553(b)(A), and prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553(b)(A) (or any other law). *See Bachow Communications Inc* . v. *FCC* , 237 F.3d 683, 690 (DC Cir. 2001) (rules governing an application process are “rules of agency organization, procedure, or practice” and are exempt from the Administrative Procedure Act's notice and comment requirement); *see also Merck & Co., Inc.* v. *Kessler* , 80 F.3d 1543, 1549-50, 38 USPQ2d 1347, 1351 (Fed. Cir. 1996) (the rules of practice promulgated under the authority of former 35 U.S.C. 6(a) (now in 35 U.S.C. 2(b)(2)) are not substantive rules (to which the notice and comment requirements of the Administrative Procedure Act apply), and *Fressola* v. *Manbeck* , 36 USPQ2d 1211, 1215 (D.D.C. 1995) (“it is extremely doubtful whether any of the rules formulated to govern patent and trade-mark practice are other than ‘interpretive rules, general statements of policy, * * * procedure, or practice.”') (quoting Casper W. Ooms, *The United States Patent Office and the Administrative Procedure Act* , 38 Trademark Rep. 149, 153 (1948)). Accordingly, prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553(b)(A) (or any other law). Regulatory Flexibility Act As discussed previously, the changes in this final rule involve rules of agency practice and procedure under 5 U.S.C. 553(b)(A), and prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553(b)(A) (or any other law). As prior notice and an opportunity for public comment were not required pursuant to 5 U.S.C. 553 (or any other law) for the changes in this final rule, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is not required for the changes in this final rule. See 5 U.S.C. 603. Executive Order 13132 This rule making does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (August 4, 1999). Executive Order 12866 This rule making has been determined to be not significant for purposes of Executive Order 12866 (September 30, 1993). Paperwork Reduction Act This final rule involves information collection requirements which are subject to review by the Office of Management and Budget

(OMB)under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collection of information involved in this final rule has been reviewed and previously approved by OMB under OMB control number 0651-0033. The United States Patent and Trademark Office is not resubmitting any information collection to OMB for its review and approval because the changes in this final rule do not affect the information collection requirements associated with the information collection under OMB control number 0651-0033. The principal impacts of the changes in this final rule are to clarify the requirement for compliance with all the requirements of filing a reexamination before a filing date will be assigned to a reexamination. Interested persons are requested to send comments regarding these information collections, including suggestions for reducing this burden to:

(1)The Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Officer for the Patent and Trademark Office; and

(2)Robert J. Spar, Director, Office of Patent Legal Administration, Commissioner for Patents, P.O. Box 1450, Alexandria, Virginia 22313-1450. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number. List of Subjects in 37 CFR Part 1 Administrative practice and procedure, Courts, Freedom of information, Inventions and patents, Reporting and recordkeeping requirements, Small businesses, and Biologics. For the reasons set forth in the preamble, the interim rule amending 37 CFR part 1 which was published at 71 FR 9260-62 on February 23, 2006, is adopted as final with the following changes: PART 1—RULES OF PRACTICE IN PATENT CASES 1. The authority citation for 37 CFR part 1 continues to read as follows: Authority: 35 U.S.C. 2(b)(2), unless otherwise noted. 2. Section 1.11 is amended by revising paragraph

(c)to read as follows: § 1.11 Files open to the public.

(c)All requests for reexamination for which all the requirements of § 1.510 or § 1.915 have been satisfied will be announced in the *Official Gazette* . Any reexaminations at the initiative of the Director pursuant to § 1.520 will also be announced in the *Official Gazette* . The announcement shall include at least the date of the request, if any, the reexamination request control number or the Director initiated order control number, patent number, title, class and subclass, name of the inventor, name of the patent owner of record, and the examining group to which the reexamination is assigned. 3. Section 1.510 is amended by revising paragraphs

(c)and

(d)to read as follows: § 1.510 Request for ex parte reexamination.

(c)If the request does not include the fee for requesting *ex parte* reexamination required by paragraph

(a)of this section and meet all the requirements by paragraph

(b)of this section, then the person identified as requesting reexamination will be so notified and will generally be given an opportunity to complete the request within a specified time. Failure to comply with the notice will result in the *ex parte* reexamination request not being granted a filing date, and will result in placement of the request in the patent file as a citation if it complies with the requirements of § 1.501.

(d)The filing date of the request for *ex parte* reexamination is the date on which the request satisfies all the requirements of this section. 4. Section 1.915 is amended by revising paragraph

(d)to read as follows: § 1.915 Content of request for inter partes reexamination.

(d)If the *inter partes* request does not include the fee for requesting *inter partes* reexamination required by paragraph

(a)of this section and meet all the requirements of paragraph

(b)of this section, then the person identified as requesting *inter partes* reexamination will be so notified and will generally be given an opportunity to complete the request within a specified time. Failure to comply with the notice will result in the *inter partes* reexamination request not being granted a filing date, and will result in placement of the request in the patent file as a citation if it complies with the requirements of § 1.501. Dated: July 31, 2006. Jon W. Dudas, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. [FR Doc. E6-12600 Filed 8-3-06; 8:45 am] BILLING CODE 3510-16-P DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration 49 CFR Part 1507 [Docket No. TSA-2004-19845; Amendment No. 1507-2] RIN 1652-AA34 Privacy Act of 1974: Implementation of Exemptions; Intelligence, Enforcement, Internal Investigation, and Background Investigation Records AGENCY: Transportation Security Administration, DHS. ACTION: Final rule. SUMMARY: The Transportation Security Administration is amending its regulations to exempt four systems of records from certain provisions of the Privacy Act. The systems intended for exemption are the Transportation Security Intelligence Service Operations Files, the Personnel Background Investigation File System, the Transportation Security Enforcement Record System, and the Internal Investigation Record. DATES: Effective September 5, 2006. FOR FURTHER INFORMATION CONTACT: Lisa S. Dean, Privacy Officer, Office of Transportation Security Policy, TSA-9, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone

(571)227-3947; facsimile

(571)227-2555. SUPPLEMENTARY INFORMATION: Availability of Rulemaking Document You can get an electronic copy using the Internet by—

(1)Searching the Department of Transportation's electronic Docket Management System

(DMS)Web page ( *http://dms.dot.gov/search* );

(2)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html;* or

(3)Visiting TSA's Security Regulations Web page at *http://www.tsa.gov* and accessing the link for “Research Center” at the top of the page. In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking. Small Entity Inquiries The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the Transportation Security Administration

(TSA)to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration's Web page at *http://www.sba.gov/advo/laws/law_lib.html.* I. Analysis of the Final Rule A. Background The Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, governs the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. See 5 U.S.C. 552a(a)(5). An individual may request access to records containing information about him or herself. 5 U.S.C. 552a(b), (d). However, the Privacy Act authorizes Government agencies to exempt systems of records from access by individuals under certain circumstances, such as where the access or disclosure of such information would impede national security or law enforcement efforts. For example, allowing the subject of an ongoing law enforcement investigation to access his or her investigative file could impede the investigation or allow the subject to avoid detection or apprehension. Exemptions from Privacy Act provisions must be established by regulation. 5 U.S.C. 552a(j), (k). TSA's Privacy Act exemptions are found at 49 CFR part 1507. B. Amendments to TSA's Privacy Act Exemptions On December 10, 2004, TSA published a notice of proposed rulemaking in the **Federal Register** (69 FR 71767) seeking to exempt four systems of records from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j) and (k). The four systems of records are:

(1)The Transportation Security Intelligence Service

(TSIS)Operations Files (DHS/TSA 011), under which TSA maintains records on intelligence, counterintelligence, transportation security, and information systems security matters as they relate to TSA's mission of protecting the nation's transportation systems;

(2)The Personnel Background Investigation File System (PBIFS) (DHS/TSA 004), under which TSA maintains investigative and background records used to make suitability and eligibility determinations for employment;

(3)The Transportation Security Enforcement Record System (TSERS) (DHS/TSA 001), which serves as an enforcement docket system; and

(4)The Internal Investigation Record System

(IIRS)(DHS/TSA 005), under which TSA maintains records that facilitate the management of investigations into allegations or appearances of misconduct by current and former TSA employees or contractors and investigations of security-related incidents and reviews of TSA programs and operations. In the December 10, 2004 notice of proposed rulemaking, TSA proposed to add 5 U.S.C. 552a(k)(1) 1 as an authority to exempt the Personnel Background Investigation File System (DHS/TSA 004) from the exemptions previously established for this system. See 49 CFR 1507.3. TSA also proposed to add 5 U.S.C. 552a(j)(2) (a general law enforcement exemption) as an authority to exempt the Transportation Security Enforcement Record System (DHS/TSA 001) and the Internal Investigation Record System (DHS/TSA 005) from the provisions previously claimed for those two systems, and to now include an exemption for those two systems of records from subsection (e)(3) of the Privacy Act. 2 1 Section 552a(k)(1) authorizes the application of exemption (b)(1) under the Freedom of Information Act (5 U.S.C. 552) protecting from disclosure “matters that are specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy” and that are properly classified under such Executive Order. 2 Section 552a(e)(3) requires the agency collecting information from an individual to inform the individual of the authority for the agency to collect the information, the purpose and intended routine uses of such information, and the potential effects on the individual if the information requested is not provided to the Government. This final rule adopts the proposed rule with only two technical changes from the proposed rule. First, TSA changed references to “security sensitive information” to read “sensitive security information.” Second, TSA revised § 1507.3(j)(1) (Accounting for Disclosures) to add text inadvertently omitted from the proposed rule related to the possibility that release of the accounting of disclosures could “reveal investigative interest on the part of the Transportation Security Administration, as well as the recipient.” The proposed rule stated that release of the accounting of disclosures could “alert the subject of intelligence gathering operations on the part of the Transportation Security Administration as well as the recipient.” This implied that TSA engages in intelligence gathering operations, which is not the case. TSA is a recipient of intelligence information and engages in analysis and dissemination of that information. The addition of the language described above corrects this incorrect implication and is consistent with the language used in the justification for exemption in § 1507.3(j)(2) (Access to Records). C. Response to Public Comments TSA received two letters commenting on the proposed rule and one comment encouraging TSA to establish redress procedures whereby air carrier customers can report and correct any inaccurate information they believe TSA possesses. TSA received consolidated comments on the proposed rule from the Electronic Frontier Foundation, PrivacyActivism, Privacy Rights Clearinghouse, the Fairfax County Privacy Council, and the World Privacy Forum (collectively, Privacy Groups). TSA also received comments from the Owner-Operator Independent Drivers Association, Inc. (OOIDA). A number of the comments from the Privacy Groups relate to the scope and routine uses for the Transportation Security Enforcement Record System (TSERS) (DHS/TSA 001) and the Transportation Security Intelligence Service

(TSIS)Operations Files (DHS/TSA 011). The remaining comments relate to the exemptions claimed for these systems, which TSA has addressed below. As a preliminary matter and an overall response to the comments, TSA recognizes that although there is a need for the exemptions provided for in this document, there may be instances where such exemptions can be waived. There may be times when application of the Privacy Act exemptions claimed here are not necessary to further a governmental interest. In appropriate circumstances, where compliance would not appear to interfere with, or adversely affect, the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived. 1. Applicability of TSERS and TSIS OOIDA requests clarification as to whether TSERS (DHS/TSA 001) and TSIS (DHS/TSA 011) apply to records TSA maintains in conjunction with conducting threat assessments of commercial truck drivers applying for hazardous materials (hazmat) endorsements. OOIDA expresses concern that the exemptions and routine uses applicable to these two records systems are inconsistent with certain protections for hazmat drivers envisioned by the regulation governing threat assessments for those drivers. TSA notes that records relating to threat assessments for hazmat drivers are contained within the Transportation Security Threat Assessment System (T-STAS) DHS/TSA 002, and are not automatically included in TSERS or TSIS. A driver's records may become a part of TSERS, only if the driver is involved in a violation or potential violation of law. 2. Exemption From Requirement To Give an Accounting for Disclosures The Privacy Groups object to TSA's proposal to exempt TSERS (DHS/TSA 001) and TSIS (DHS/TSA 011) from the requirement in 5 U.S.C. 552a(c)(3) to furnish individuals with an accounting for disclosures of records. They state that this exemption is not necessary because disclosures for civil and criminal law enforcement activity already are exempt from the disclosure requirements in 5 U.S.C. 552a(c)(3). See 5 U.S.C. 552a(c)(3) and (b)(7). TSA notes that disclosures pursuant to subsection (b)(7) of the Privacy Act are not the only disclosures TSA may need to make from these systems. TSA may need to make a disclosure, for instance, when the agency merely suspects a violation of law. Accounting of such a disclosure would not be exempted under 5 U.S.C. 552a(c)(3) and (b)(7), because that limited exemption applies only where the disclosure results from a written request from any agency head specifying the particular portion of the record desired. The current routine uses applicable to the TSERS and TSIS systems of records permit disclosure of information in those systems to Federal, State, local, tribal, territorial, foreign or international agencies responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where TSA becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation. Any requirement to disclose the accounting of disclosures compiled under the requirements of 5 U.S.C. 552(a)(c)(3) may interfere with a law enforcement investigation, particularly if the subject of the investigation is unaware of the investigation. Consequently, TSA must assert an exemption from the accounting requirements of 5 U.S.C. 552a(c)(3) generally. TSA notes that the ability to use a routine use for certain disclosures was intended as an addition to the type of disclosures for civil or criminal law enforcement activity under 5 U.S.C. 552a(b)(7). See Office of Management and Budget Guidance, 40 FR 28955 (July 9, 1975). Dependence on the disclosure authority in subsection (b)(7) for all investigations, therefore, is not appropriate, and must be supplemented by routine uses. For this reason, TSA also is claiming an exemption from 5 U.S.C. 552a(c)(3), generally, to cover access to the accounting of the disclosures made pursuant to these routine uses. As explained in this document, TSA is exempting the two systems of records, TSERS (DHS/TSA 001) and TSIS (DHS/TSA 011), from the accounting for disclosures in order to protect the integrity of investigations. Notifying individuals of an investigation alerts those individuals who are subject to the investigation, and could help them evade investigation and compromise security. Both of the systems of records at issue are essential to TSA's transportation security mission. TSA notes that with respect to TSERS (DHS/TSA 001), this rulemaking only adds 5 U.S.C. 552a(j)(2) as an authority for exemptions, and that TSA previously published a final rule on June 25, 2004 (69 FR 35536), exempting the TSERS (DHS/TSA 001) system from the accounting, access, and relevance/necessity requirements. TSERS is a system intended to cover civil and criminal enforcement and inspection records, and records related to investigations or prosecution of violations or potential violations of law. TSERS records are also used to record details of security-related activity, such as passenger or baggage screening, and include suspicious activity reports. TSIS is a system intended to cover records on intelligence, counterintelligence, transportation security, and information security matters as they relate to TSA's mission of protecting the nation's transportation systems. TSIS records also are used to identify potential threats to transportation security, uphold and enforce the law, and ensure public safety. Both TSERS and TSIS contain records that are investigatory in nature. If TSA is investigating a security incident, or the security activities of a regulated entity, it is imperative that the individuals involved not be given the opportunity to evade detection and resulting enforcement action. Providing this knowledge to such individuals defeats the investigation. Commenters suggest that an exemption from the requirement to provide individuals access to the accounting of disclosures would prevent an individual wrongly denied a job, contract, or license from learning to whom incorrect information had been disclosed, and from attempting to correct any error. However, because the focus of the TSERS and TSIS systems is to support transportation security and the use of appropriate investigatory authority, TSA must be able to notify transportation employers about their employees that violate TSA regulations or are determined to pose a threat to transportation, particularly if the investigation requires the cooperation of the employer. Where an employer takes action against an individual, it is expected that the employer will likely notify the individual of the basis of the action, including the fact of a disclosure from TSA. So, for example, if an air carrier employee is caught with a firearm at a screening checkpoint, TSA will report that incident to the air carrier for its consideration in connection with revoking the employee's security credentials. The air carrier will likely notify the individual of the basis of the revocation. The individual can contest the Notice of Violation from TSA, or can seek redress under the procedures outlined in the applicable Privacy Impact Assessment. If, on the other hand, TSA is investigating an air carrier employee for on-going access door violations, TSA might notify the employer of the investigation, but ask that the employer not notify the employee of the disclosure in order to preserve the investigation. In developing these systems, TSA has attempted to strike a balance between the agency's mission to protect the nation against threats to transportation, and the privacy and civil liberties of the public. 3. Exemption From Requirement To Collect Only Relevant and Necessary Information The Privacy Groups also object to TSA's assertion of exemption authority under 5 U.S.C. 552a(e)(1), which permits the maintenance of information beyond that which is “relevant and necessary” to accomplish the agency's purpose. The Privacy Groups state that the assertion of this exemption would lead to the wide dissemination of irrelevant and inaccurate information. While the commenters focus on the relevance requirement, they fail to address the necessity component of the statute. The necessity of maintaining a particular piece of information often is difficult to determine in the context of an investigation, particularly in its nascent stages. TSA will, of course, collect information that it deems relevant to the investigation as collection of irrelevant information wastes scarce resources, is inefficient, and uses database space inappropriately. It is, however, not always possible to determine the relevance *and* necessity (emphasis added) of specific information early in the investigative process. TSA should not be required to discard relevant information as unnecessary when such information may very well turn out to be necessary later in an investigation. To ensure that no key pieces of information are lost, and in the interest of protecting the integrity of investigations, TSA is claiming an exemption from the relevancy and necessity requirements. TSERS and TSIS are both systems crucial to the TSA's transportation security mission. Without this exemption, TSA's ability to conduct thorough investigations, and ultimately its ability to protect transportation security, is jeopardized. As to the allegation that inaccurate and irrelevant information will be “widely” disseminated, TSA disseminates information only as appropriate and authorized under the Privacy Act. 4. Exemption From Notice Requirements Finally, the Privacy Groups object to TSA's proposed exemption of TSERS (DHS/TSA 001) from the requirement of 5 U.S.C. 552a(e)(3), which requires that, prior to requiring an individual to submit information to an agency, the agency provide notice of the authority under which information is collected, the purpose for which it is intended to be used, routine uses which may be made; and the consequences to the individual for refusing to provide the information. TSA claims this exemption in order to safeguard the integrity of investigations. Early notice to all individuals of the authority, voluntary nature, purpose, and routine uses of the information collected would impair investigations into transportation security. It would reveal TSA's investigative interest in the individual, as well as the nature of the investigation, thereby providing the individual an opportunity to interfere with the investigation or evade detection or suspicion. Also, the Privacy Groups state that this exemption should not apply to information that individuals provide to TSA for purposes of passenger screening. With respect to the Privacy Groups' concerns regarding passenger reservations data, such information will be part of a separate system of records to be published in connection with the Secure Flight Program. The TSERS (DHS/TSA 001) system does not cover the records TSA will maintain for the operation of the Secure Flight Program. The Air Transport Association of America, Inc, has no comments on the proposed rule, but encourages TSA to establish redress procedures whereby air carrier customers can report and correct any inaccurate information they believe TSA possesses. TSA has established an Office of Transportation Security Redress that will be the public's point of contact for this purpose. TSA also will publish a system of records notice for the Secure Flight program that will be the primary system affecting passengers. II. Regulatory Requirements A. Regulatory Impact Analyses Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 *et seq.* , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation). In conducting these analyses, TSA has determined: 1. Executive Order 12866 Assessment This rule is a significant regulatory action under section 3(f) of Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993) (as amended). Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB). Distilled to its essence, this rulemaking exempts TSA from providing a privacy act notice in the context of criminal investigations, permits TSA to withhold classified documents from employees seeking their background investigation, and exempts TSA intelligence records from access, accounting, and relevance/necessity requirements as outlined elsewhere in this rulemaking. TSA's ability to perform law enforcement and intelligence functions connected to transportation security are significantly degraded without these exemptions. 2. Regulatory Flexibility Act Assessment The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). Section 605 of the RFA allows an agency, in lieu of preparing an analysis, to certify that a rule is not expected to have a significant economic impact on a substantial number of small entities. Accordingly, TSA certifies that this final rule will not have a significant impact on a substantial number of small entities. The final rule imposes no duties or obligations on small entities. This rule provides exemptions to existing procedures and adds no new regulated parties. Further, the exemptions to the Privacy Act apply to individuals, and individuals are not covered entities under the RFA. 3. International Trade Impact Assessment This rulemaking will not constitute a barrier to international trade. The exemptions relate to criminal investigations and agency documentation and, therefore, do not create any new costs or barriers to trade. 4. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. L. 104-4, 109 Stat. 48), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. UMRA requires a written statement of economic and regulatory alternatives for proposed and final rules that contain Federal mandates. A “Federal mandate” is a new or additional enforceable duty, imposed on any State, local, or tribal government, or the private sector. If any Federal mandate causes those entities to spend, in aggregate, $100 million or more in any one year the UMRA analysis is required. This rulemaking will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector. This rule will provide exemptions rather than new requirements. The exemptions relate to criminal investigations of individuals and agency documentation and, therefore, do not create any new requirements for state, local, or tribal governments, or on the private sector. B. Paperwork Reduction Act The Paperwork Reduction Act of 1995

(PRA)(44 U.S.C. 3501 *et seq.* ) requires that TSA consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget

(OMB)for each collection of information it conducts, sponsors, or requires through regulations. TSA has determined that there are no current or new information collection requirements associated with this rule. C. Executive Order 13132, Federalism TSA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. This action will not have 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, and therefore will not have federalism implications. D. Environmental Analysis TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969

(NEPA)(42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment. E. Energy Impact The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act

(EPCA)Public Law 94-163, as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory action under the provisions of the EPCA. List of Subjects in 49 CFR Part 1507 Privacy. The Amendment In consideration of the foregoing, the Transportation Security Administration amends part 1507 of Chapter XII, Title 49 of the Code of Federal Regulations, as follows: PART 1507—PRIVACY ACT-EXEMPTIONS 1. The authority citation for part 1507 continues to read as follows: Authority: 49 U.S.C. 114(l)(1), 40113, 5 U.S.C. 552a(j) and (k). 2. Amend § 1507.3 by revising paragraphs (a), (c), and (d), and by adding a new paragraph

(j)to read as follows: § 1507.3 Exemptions.

(a)*Transportation Security Enforcement Record System (DHS/TSA 001).* The Transportation Security Enforcement Record System (TSERS) (DHS/TSA 001) enables TSA to maintain a system of records related to the screening of passengers and property and they may be used to identify, review, analyze, investigate, and prosecute violations or potential violations of criminal statutes and transportation security laws. Pursuant to exemptions (j)(2), (k)(1), and (k)(2) of the Privacy Act, DHS/TSA 001 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(3), (e)(4)(G), (H), and (I), and (f). Exemptions from the particular subsections are justified for the following reasons:

(1)From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of TSA, as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to transportation security, law enforcement efforts, and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension, which undermines the entire system.

(2)From subsection

(d)(Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of the investigation and reveal investigative interest on the part of TSA, as well as the recipient agency. Access to the records would permit the individual who is the subject of a record to impede the investigation and avoid detection or apprehension. Amendment of the records would interfere with ongoing investigations and law enforcement activities, and impose an impossible administrative burden by requiring investigations to be continuously reinvestigated. The information contained in the system may also include properly classified information, the release of which would pose a threat to national defense and/or foreign policy. In addition, permitting access and amendment to such information also could disclose sensitive security information, which could be detrimental to transportation security.

(3)From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of transportation security laws, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective enforcement of transportation security laws, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.

(4)From subsection (e)(3) (Privacy Act Statement) because disclosing the authority, purpose, routine uses, and potential consequences of not providing information could reveal the investigative interests of TSA, as well as the nature and scope of an investigation, the disclosure of which could enable individuals to circumvent agency regulations or statutes.

(5)From subsections (e)(4)(G), (H), and

(I)(Agency Requirements), and

(f)(Agency Rules), because this system is exempt from the access provisions of subsection (d).

(c)*Personnel Background Investigation File System (DHS/TSA 004)* . The Personnel Background Investigation File System (PBIFS) (DHS/TSA 004) enables TSA to maintain investigative and background material used to make suitability and eligibility determinations regarding current and former TSA employees, applicants for TSA employment, and TSA contract employees. Pursuant to exemptions (k)(1) and (k)(5) of the Privacy Act, the Personnel Background Investigation File System is exempt from 5 U.S.C. 552a(c)(3) (Accounting of Disclosures) and

(d)(Access to Records). Exemptions from the particular subsections are justified because this system contains investigatory material compiled solely for determining suitability, eligibility, and qualifications for Federal civilian employment. To the extent that the disclosure of material would reveal any classified material or the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to September 27, 1975, under an implied promise that the identity of the source would be held in confidence, the applicability of exemption (k)(5) will be required to honor promises of confidentiality should the data subject request access to or amendment of the record, or access to the accounting of disclosures of the record. Exemption (k)(1) will be required to protect any classified information that may be in this system.

(d)*Internal Investigation Record System (DHS/TSA 005)* . The Internal Investigation Record System

(IIRS)(DHS/TSA 005) contains records of internal investigations for all modes of transportation for which TSA has security-related duties. This system covers information regarding investigations of allegations or appearances of misconduct of current or former TSA employees or contractors and provides support for any adverse action that may occur as a result of the findings of the investigation. It is being modified to cover investigations of security-related incidents and reviews of TSA programs and operations. Pursuant to exemptions (j)(2), (k)(1), and (k)(2) of the Privacy Act, DHS/TSA 005 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(3), (e)(4)(G), (H), and (I), and (f). Exemptions from the particular subsections are justified for the following reasons:

(1)From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could reveal investigative interest on the part of the recipient agency that obtained the record pursuant to a routine use. Disclosure of the accounting could, therefore, present a serious impediment to law enforcement efforts on the part of the recipient agency, as the individual who is the subject of a record would learn of third-agency investigative interests and thereby avoid detection or apprehension, as well as to TSA investigative efforts.

(2)From subsection

(d)(Access to Records) because access to the records contained in this system could reveal investigative techniques and procedures of the investigators, as well as the nature and scope of the investigation, the disclosure of which could enable individuals to circumvent agency regulations or statutes. The information contained in the system might include properly classified information, the release of which would pose a threat to national defense and/or foreign policy. In addition, permitting access and amendment to such records could reveal sensitive security information protected pursuant to 49 U.S.C. 114(s), the disclosure of which could be detrimental to the security of transportation.

(3)From subsection (e)(1) (Relevancy and Necessity of Information) because third agency records obtained or made available to TSA during the course of an investigation may occasionally contain information that is not strictly relevant or necessary to a specific investigation. In the interests of administering an effective and comprehensive investigation program, it is appropriate and necessary for TSA to retain all such information that may aid in that process.

(4)From subsection (e)(3) (Privacy Act Statement) because disclosing the authority, purpose, routine uses, and potential consequences of not providing information could reveal the targets of interests of the investigating office, as well as the nature and scope of an investigation, the disclosure of which could enable individuals to circumvent agency regulations or statutes.

(5)From subsections (e)(4)(G),

(H)and

(I)(Agency Requirements), and

(f)(Agency Rules), because this system is exempt from the access provisions of subsection (d).

(j)*Transportation Security Intelligence Service

(TSIS)Operations Files.* Transportation Security Intelligence Service Operations Files

(TSIS)(DHS/TSA 011) enables TSA to maintain a system of records related to intelligence gathering activities used to identify, review, analyze, investigate, and prevent violations or potential violations of transportation security laws. This system also contains records relating to determinations about individuals' qualifications, eligibility, or suitability for access to classified information. Pursuant to exemptions (j)(2), (k)(1), (k)(2), and (k)(5) of the Privacy Act, DHS/TSA 011 is exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f). Exemptions from particular subsections are justified for the following reasons:

(1)From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of intelligence gather operations and reveal investigative interest on the part of the Transportation Security Administration, as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to transportation security law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede operations and avoid detection and apprehension, which undermined the entire system. Disclosure of the accounting may also reveal the existence of information that is classified or sensitive security information, the release of which would be detrimental to the security of transportation.

(2)From subsection

(d)(Access to Records) because access to the records contained in this system of records could inform the subject of intelligence gathering operations and reveal investigative interest on the part of the Transportation Security Administration. Access to the records would permit the individual who is the subject of a record to impede operations and possibly avoid detection or apprehension. Amendment of the records would interfere with ongoing intelligence and law enforcement activities and impose an impossible administrative burden by requiring investigations to be continually reinvestigated. The information contained in the system may also include properly classified information, the release of which would pose a threat to national defense and/or foreign policy. In addition, permitting access and amendment to such information also could disclose sensitive security information, which could be detrimental to transportation security if released. This system may also include information necessary to make a determination as to an individual's qualifications, eligibility, or suitability for access to classified information, the release of which would reveal the identity of a source who received an express or implied assurance that their identity would not be revealed to the subject of the record.

(3)From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of gathering and analyzing information about potential threats to transportation security, the accuracy of information obtained or introduced occasionally may be unclear or the information may not be strictly relevant or necessary to a specific operation. In the interests of transportation security, it is appropriate to retain all information that may aid in identifying threats to transportation security and establishing other patterns of unlawful activity.

(4)From subsections (e)(4)(G), (H), and

(I)(Agency Requirements), and

(f)(Agency Rules), because this system is exempt from the access and amendment provisions of subsection (d). Issued in Arlington, Virginia, on July 28, 2006. Kip Hawley, Assistant Secretary. [FR Doc. 06-6670 Filed 8-3-06; 8:45 am]

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