Assistant Secretary for Technology Policy; Licensing of Government Owned Inventions, 11510-11514 [06-2166]

Agencies

• DEPARTMENT OF COMMERCE

[Federal Register Volume 71, Number 45 (Wednesday, March 8, 2006)]
[Rules and Regulations]
[Pages 11510-11514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2166]


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DEPARTMENT OF COMMERCE

37 CFR Part 404

[Docket No. 040305084-5095-02]
RIN 0692-AA19


Assistant Secretary for Technology Policy; Licensing of 
Government Owned Inventions

AGENCY: Assistant Secretary for Technology Policy, Department of 
Commerce (DOC).

ACTION: Final rule.

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SUMMARY: The Assistant Secretary for Technology Policy, DOC issues this 
final rule with respect to the granting of licenses by Federal agencies 
on Federally owned inventions. This rule is intended to incorporate 
changes made by the Technology Transfer Commercialization Act of 2000 
and streamlines the licensing procedures to focus primarily on 
statutory requirements. This final rule responds to comments received 
in response to a proposed rule published on January 7, 2005 (70 FR 
1403).

DATES: This rule is effective on April 7, 2006.

FOR FURTHER INFORMATION CONTACT: Mr. John Raubitschek, Patent Counsel, 
at telephone: (202) 482-8010 and e-mail: JRaubits@doc.gov.

SUPPLEMENTARY INFORMATION: Under the authority of 35 U.S.C. 208 and the 
delegation by the Secretary of Commerce in section 3(d)(3) of DOO 10-
18, the Assistant Secretary of Commerce for Technology Policy may issue 
revisions to 37 CFR part 401.

Background

    The Technology Transfer Commercialization Act of 2000 (TTCA) made 
several changes to the law for licensing Government-owned inventions in 
35 U.S.C. 207 and 209, which are implemented in this rule. This rule 
also streamlines the licensing procedures to focus primarily on 
statutory requirements. DOC published a proposed rule in the Federal 
Register on January 7, 2005 (70 FR 1403) seeking public comment on 
changes to Sec. Sec.  404.1, 404.3, 404.4, 404.5, 404.6, 404.7, 404.9, 
404.10, 404.11, 404.12 and 404.14. The comment period closed on 
February 7, 2005. The basis for this rulemaking was described in the 
preamble to the proposed rule and is not repeated here.

Summary of Public Comments Received by DOC in Response to the January 
7, 2005 Proposed Rule and DOC's Response to Those Comments

    DOC received seven responses to the request for comments. Four 
responses were from Federal government agencies. One was from a not-
for-profit institution and two were from private individuals. Several 
responses made more than one comment. An analysis of the comments 
follows.
    Comment: One comment suggested adding ``formal'' before ``patent 
disputes'' in Sec.  404.1(c) to narrow the exemption from the licensing 
requirements in Part 404.
    Response: DOC doubts that an agency will use this exemption to 
resolve a trivial or contrived dispute. Further, the addition of the 
word ``formal'' may not avoid this problem.
    Comment: One comment suggested adding ``,for example'' after 
``protectable'' in Sec.  404.3(a).
    Response: This definition is taken from 35 U.S.C. 201(d) and should 
remain as written for the sake of consistency.
    Comment: Two comments noted a typographical error in Sec.  
404.5(a)(2) that ``license'' should be ``licensee.''
    Response: DOC agrees with the comments and has made the suggested 
change.
    Comment: One comment suggested replacing ``However'' in 404.5(a)(2) 
with ``For example.''
    Response: No change has been made in response to this comment. The 
stated bases for waiving the domestic manufacturing requirement are not 
merely examples but the only reasons for the agency making the waiver.
    Comment: One comment was concerned that Sec.  404.5(a)(2) required 
an agency to find one or more companies which would refuse a license 
with the domestic manufacturing requirement in order to grant a waiver 
of such a requirement. The comment suggested adding ``or no such 
candidates are known.''
    Response: The waiver language was taken from 35 U.S.C. 204, which 
has

[[Page 11511]]

proven effective for universities and small business firms seeking a 
waiver. The intent is that the licensing agency should make an effort 
to find a company that will accept such a requirement. If there is only 
one company interested in a license and that company is unwilling to 
accept the domestic manufacturing requirement, the agency may waive the 
requirement if it has made reasonable efforts to find other potential 
licensees. Thus, DOC does not accept the proposed language because it 
would not impose a duty on the agency to look for other companies which 
may accept the requirement.
    Comment: One comment felt that the public notice requirement in 
Sec.  404.4 was not clearly limited to inventions that the agency had 
determined were available for license and suggested that ``available'' 
be added before inventions of which the public is to be notified.
    Response: DOC agrees with the comment and has made the suggested 
change.
    Comment: One comment was concerned that the explanation in 
paragraph no. 5 of the proposed rule about the abbreviated development 
plan for a research license in Sec.  404.5(a)(1) implied that 
background inventions could be licensed in a cooperative research and 
development agreement (CRADA) only on for research purposes. Another 
comment supported the concept of an abbreviated development plan for 
small mom-and-pop research entities.
    Response: The suggestion that a background invention be licensed 
for research purposes under a CRADA was not intended to preclude it 
from being commercially licensed. Further, there is no limitation in 
Sec.  404.5(a)(1) for background inventions.
    Comment: One comment recommended that all references be to Title 5 
instead of title 5.
    Response: DOC agrees with this comment and made the suggested 
change in Sec. Sec.  404.3 and 404.14.
    Comment: One comment questioned whether the new basis for 
terminating a license in Sec.  404.5(b)(8)(v) for an adjudicated 
violation of the antitrust laws imposed an additional responsibility on 
the agency granting an exclusive license. The comment was concerned 
that if the agency did not meet such a duty, it might be liable and 
recommended that the license contain a disclaimer of such liability.
    Response: The additional basis for termination has nothing to do 
with the granting of a license although there is a requirement in Sec.  
404.7(a)(iii) that the agency has not determined that the grant of the 
license will tend substantially to lessen competition or be in 
violation of the antitrust laws. As far as a disclaimer goes, many 
Government licenses include one based on the language in Sec.  
404.5(b)(11).
    Comment: One comment criticized the criterion ``in the public 
interest'' as being vague for permitting in Sec.  404.5(b)(2) a 
nonexclusive licensee the right to enforce a Government owned patent. 
The comment questioned who was going to make the determination of 
public interest: The agency or the Department of Justice and suggested 
language that would include the right of enforcement as an amendment to 
the license as approved by the parties and the Department of Justice at 
the time the enforcement issue arises. Another comment supports the 
concept of letting a nonexclusive licensee enforce the patent against 
infringers but suggests that the licensee provide notice to the agency 
before filing suit so that the agency could advise if the party to be 
sued already has a license.
    Response: With respect to the first comment about the vagueness of 
``in the public interest,'' DOC notes that this phrase also appears in 
35 U.S.C. 207(a)(2) and Sec.  404.7(a)(2)(iv). The determination of 
allowing the licensee the right to enforce is made by the agency and 
the licensee. With respect to prior notice to the agency, there is 
nothing in this section that precludes requiring such notice in a 
license agreement and in fact, many agencies have such a requirement 
for exclusive licensees.
    Comment: One comment questioned the desirability of entering into 
co-exclusive licenses to resolve competition between two applicants for 
a license.
    Response: The regulation does not require an agency to enter into 
co-exclusive licenses for any reason. The regulation merely recognizes 
that some agencies may grant co-exclusive licenses, which must follow 
the rules applicable to exclusive licenses.
    Comment: Two comments questioned the scope of licensing unpatented 
inventions and whether it could include know-how or unpatentable 
inventions and be subject to royalty sharing with the inventor. One 
comment wondered if the rights under such a license would be different 
than obtaining information under the Freedom of Information Act (FOIA).
    Response: The authority to license inventions is contained in 35 
U.S.C. 207(a)(2). An invention is defined in 35 U.S.C. 201(d) as ``any 
invention or discovery which is or may be patentable or otherwise 
protectable under this title'' or a novel plant variety ``which is or 
may be protectable under the Plant Variety Protection Act.'' This 
language preceded the Bayh-Dole Act and appeared in the definition of 
invention in the Presidential Memoranda and Statements of Government 
Patent Policy in 1963 and 1971. However, the meaning of this phrase is 
not certain. See Steven Robert Fuscher, ``A Study of How the Government 
obtains Patent Rights under the DAR and the FPR Patent Rights 
Clauses,'' 10 Pub. Cont. L. J. 296, 339 (1978) (``there appears to be 
an unspoken agreement to let reason and equity govern the application 
of this phrase''). DOC interprets the term to mean that the invention 
must have the potential of being protected and so could include 
computer software and biological materials or any other subject matter 
in 35 U.S.C. 101. If know-how includes an invention, then it can be 
licensed. Any royalties must be shared with the inventors as required 
by 15 U.S.C. 3710c which applies to the licensing or assignment of 
Government owned inventions.
    The licensing of an invention which is not protected by any 
intellectual property can be considered as creating a bailment of the 
personal property which is subject to certain conditions of use. Those 
terms may be enforced as a matter of contract. In the absence of any 
underlying intellectual property, there are no rights available to 
enforce against third parties.
    With respect to an invention which has been in public use or on 
sale for more than a year because of a license, it may not be 
patentable under 35 U.S.C. 102(b). In addition, an invention may not be 
patentable because it would have been obvious under 35 U.S.C. 103. 
Since sections 102 and 103 both contain conditions for patentability, 
they are not considered to affect the licensability of unpatented 
inventions. All that is required is that the invention have patentable 
subject matter.
    Further, the licensing of an invention may not be a bar under 
section 102(b) if the invention is leased but not sold and if there are 
secrecy requirements associated with providing access to the invention. 
There are also other requirements for an ``on sale'' bar, such as the 
invention must be ``ready for patenting.'' See Pfaff v. Wells Elec., 
Inc., 525 U.S. 55, 67-68 (1998). Finally, we note that under the old 35 
U.S.C. 207, an agency could license a patent application which might 
never issue as a patent because the Patent and Trademark Office 
determined that it was unpatentable.
    FOIA raises an issue with respect to inventions which have an 
information content because under FOIA that

[[Page 11512]]

information may be available for free or for the cost of reproduction. 
This would obviously complicate the licensing of inventions. However, 
the invention may not be a record which is subject to FOIA. Biological 
materials are not a record subject to FOIA.
    On the other hand, there is a question whether software is a 
government record subject to FOIA. See Gilmore v. DOE, 4 F. Supp. 2d 
912, 920 (N.D. Cal. 1998) (``Even if DOE actually owned and controlled 
CLERVER [video conferencing software created by Sandia National 
Laboratories under contract with DOE] at the time of Gilmore's FOIA 
request, CLERVER still would not be an agency record subject to FOIA 
because CLERVER does not illuminate the structure, operation, or 
decision making structure of DOE.'' On the other hand in DeLorme Pub. 
Co. v. NOAA, 907 F. Supp. 10 (D. Me. 1995), software was held to be a 
record but later found to be protectable under the FTTA, DeLorme Pub. 
Co. v. NOAA, 917 F. Supp. 867 (D. Me. 1996). Further, even if software 
is subject to FOIA, the agency is not limited to charging only for the 
cost of reproduction under 5 U.S.C. 552(a)(4)(vi) when other fees are 
authorized by statute. See Jack Wade Warren, Jr v. Department of 
Commerce, Civil Action No. 96-0717 RMU (D.D.C. Feb. 25, 1998).

Changes From the Proposed Rule

    In response to comments, editorial changes were made to Sec. Sec.  
404.3, 404.5(a)(2) and 404.14. In addition, the word ``available'' was 
added to Sec.  404.4 as proposed by a comment. Finally, ``Federally 
owned'' in Sec. Sec.  404.3, 404.4, 404.5, 404.7 and 404.12 was 
replaced by ``Government owned'' to make it consistent with the title 
of the regulation.

Classification

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of E.O. 12866.

Executive Order 13132

    This rule does not contain policies with Federalism implications as 
that term is defined in E.O. 13132.

Administrative Procedure Act

    This rule involves rules of agency practice and procedure under 5 
U.S.C. 553(b)(A) and prior notice and an opportunity for public comment 
are, therefore, not required by the Administrative Procedure Act, or 
any other statute or regulation, for this rule.

Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule pursuant to 5 
U.S.C. 553(b)(A), or by any other law, this rule is not subject to the 
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.).

Paperwork Reduction Act

    The rule was changed to include a utilization report requirement in 
404.5(a)(6) and so imposes a new collection of information requirement 
under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.). 
Office of Management and Budget (OMB) approval was sought and obtained 
for the application for a license in 404.8 and the utilization report 
in 404.5(a)(6) and the approval (number 0692-0006) has been extended 
until January 31, 2009. The time to complete the license application 
and the utilization report is estimated to be 2 hours and 1 hour, 
respectively.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the PRA, unless that collection of information displays a currently 
valid OMB control number. However, this collection of information does 
not include a document to display the OMB Control No. 0692-0006.

List of Subjects in 37 CFR Part 404

    Inventions, Patents, Licenses.

    Dated: February 13, 2006.
Daniel W. Caprio, Jr.,
(Acting) Assistant Secretary of Commerce for Technology Policy.

0
For the reasons set forth in the preamble, 37 CFR Part 404 is amended 
as follows:

PART 404--LICENSING OF GOVERNMENT OWNED INVENTIONS

0
1. The authority citation for Part 404 is revised to read as follows:

    Authority: 35 U.S.C. 207-209.


0
2. Section 404.1 is revised to read as follows:


Sec.  404.1  Scope of part.

    This part prescribes the terms, conditions, and procedures upon 
which a federally owned invention, other than an invention in the 
custody of the Tennessee Valley Authority, may be licensed. This part 
does not affect licenses which:
    (a) Were in effect prior to April 7, 2006;
    (b) May exist at the time of the Government's acquisition of title 
to the invention, including those resulting from the allocation of 
rights to inventions made under Government research and development 
contracts;
    (c) Are the result of an authorized exchange of rights in the 
settlement of patent disputes, including interferences; or
    (d) Are otherwise authorized by law or treaty, including 35 U.S.C. 
202(e), 35 U.S.C. 207(a)(3) and 15 U.S.C. 3710a, which also may 
authorize the assignment of inventions. Although licenses on inventions 
made under a cooperative research and development agreement (CRADA) are 
not subject to this regulation, agencies are encouraged to apply the 
same policies and use similar terms when appropriate. Similarly, this 
should be done for licenses granted under inventions where the agency 
has acquired rights pursuant to 35 U.S.C. 207(a)(3).

0
3. In Sec.  404.3, paragraph (a) is revised to read as follows:


Sec.  404.3  Definitions.

    (a) Government owned invention means an invention, whether or not 
covered by a patent or patent application, or discovery which is or may 
be patentable or otherwise protectable under Title 35, the Plant 
Variety Protection Act (7 U.S.C. 2321 et seq.) or foreign patent law, 
owned in whole or in part by the United States Government.
* * * * *

0
4. Section 404.4 is revised to read as follows:


Sec.  404.4  Authority to grant licenses.

    Federally owned inventions shall be made available for licensing as 
deemed appropriate in the public interest and each agency shall notify 
the public of these available inventions. The agencies having custody 
of these inventions may grant nonexclusive, co-exclusive, partially 
exclusive, or exclusive licenses thereto under this part. Licenses may 
be royalty-free or for royalties or other consideration. They may be 
for all or less than all fields of use or in specified geographic areas 
and may include a release for past infringement. Any license shall not 
confer on any person immunity from the antitrust laws or from a charge 
of patent misuse, and the exercise of such rights pursuant to this part 
shall not be immunized from the operation of state or federal law by 
reason of the source of the grant.

0
5. In Section 404.5, paragraph (a), paragraph (b)(2) and paragraphs 
(b)(4)

[[Page 11513]]

through (b)(9) are revised to read as follows:


Sec.  404.5  Restrictions and conditions on all licenses granted under 
this part.

    (a)(1) A license may be granted only if the applicant has supplied 
the Federal agency with a satisfactory plan for development or 
marketing of the invention, or both, and with information about the 
applicant's capability to fulfill the plan. The plan for a non-
exclusive research license may be limited to describing the research 
phase of development.
    (2) A license granting rights to use or sell under a Government 
owned invention in the United States shall normally be granted only to 
a licensee who agrees that any products embodying the invention or 
produced through the use of the invention will be manufactured 
substantially in the United States. However, this condition may be 
waived or modified if reasonable but unsuccessful efforts have been 
made to grant licenses to potential licensees that would be likely to 
manufacture substantially in the United States or if domestic 
manufacture is not commercially feasible.
    (b) * * *
    (1) * * *
    (2) Any patent license may grant the licensee the right of 
enforcement of the licensed patent without joining the Federal agency 
as a party as determined appropriate in the public interest.
    (3) * * *
    (4) The license may provide the licensee the right to grant 
sublicenses under the license, subject to the approval of the Federal 
agency. Each sublicense shall make reference to the license, including 
the rights retained by the Government, and a copy of such sublicense 
with any modifications thereto, shall be promptly furnished to the 
Federal agency.
    (5) The license shall require the licensee to carry out the plan 
for development or marketing of the invention, or both, to bring the 
invention to practical application within a reasonable time as 
specified in the license, and continue to make the benefits of the 
invention reasonably accessible to the public.
    (6) The license shall require the licensee to report periodically 
on the utilization or efforts at obtaining utilization that are being 
made by the licensee, with particular reference to the plan submitted 
but only to the extent necessary to enable the agency to determine 
compliance with the terms of the license.
    (7) Where an agreement is obtained pursuant to Sec.  404.5(a)(2) 
that any products embodying the invention or produced through the use 
of the invention will be manufactured substantially in the United 
States, the license shall recite such an agreement.
    (8) The license shall provide for the right of the Federal agency 
to terminate the license, in whole or in part, if the agency determines 
that:
    (i) The licensee is not executing its commitment to achieve 
practical application of the invention, including commitments contained 
in any plan submitted in support of its request for a license and the 
licensee cannot otherwise demonstrate to the satisfaction of the 
Federal agency that it has taken, or can be expected to take within a 
reasonable time, effective steps to achieve practical application of 
the invention;
    (ii) Termination is necessary to meet requirements for public use 
specified by Federal regulations issued after the date of the license 
and such requirements are not reasonably satisfied by the licensee;
    (iii) The licensee has willfully made a false statement of or 
willfully omitted a material fact in the license application or in any 
report required by the license agreement;
    (iv) The licensee commits a substantial breach of a covenant or 
provision contained in the license agreement, including the requirement 
in Sec.  404.5(a)(2); or
    (v) The licensee has been found by a court of competent 
jurisdiction to have violated the Federal antitrust laws in connection 
with its performance under the license agreement.
    (9) The license may be modified or terminated, consistent with this 
part, upon mutual agreement of the Federal agency and the licensee.
* * * * *

0
6. Section 404.6 is revised to read as follows:


Sec.  404.6  Nonexclusive licenses.

    Nonexclusive licenses may be granted under Government owned 
inventions without a public notice of a prospective license.

0
7. Section 404.7 is revised to read as follows:


Sec.  404.7  Exclusive, co-exclusive and partially exclusive licenses.

    (a)(1) Exclusive, co-exclusive or partially exclusive domestic 
licenses may be granted on Government owned inventions, only if;
    (i) Notice of a prospective license, identifying the invention and 
the prospective licensee, has been published in the Federal Register, 
providing opportunity for filing written objections within at least a 
15-day period;
    (ii) After expiration of the period in Sec.  404.7(a)(1)(i) and 
consideration of any written objections received during the period, the 
Federal agency has determined that;
    (A) The public will be served by the granting of the license, in 
view of the applicant's intentions, plans and ability to bring the 
invention to the point of practical application or otherwise promote 
the invention's utilization by the public.
    (B) Exclusive, co-exclusive or partially exclusive licensing is a 
reasonable and necessary incentive to call forth the investment capital 
and expenditures needed to bring the invention to practical application 
or otherwise promote the invention's utilization by the public; and
    (C) The proposed scope of exclusivity is not greater than 
reasonably necessary to provide the incentive for bringing the 
invention to practical application, as proposed by the applicant, or 
otherwise to promote the invention's utilization by the public;
    (iii) The Federal agency has not determined that the grant of such 
a license will tend substantially to lessen competition or create or 
maintain a violation of the Federal antitrust laws; and
    (iv) The Federal agency has given first preference to any small 
business firms submitting plans that are determined by the agency to be 
within the capability of the firms and as having equal or greater 
likelihood as those from other applicants to bring the invention to 
practical application within a reasonable time.
    (2) In addition to the provisions of Sec.  404.5, the following 
terms and conditions apply to domestic exclusive, co-exclusive and 
partially exclusive licenses:
    (i) The license shall be subject to the irrevocable, royalty-free 
right of the Government of the United States to practice or have 
practiced the invention on behalf of the United States and on behalf of 
any foreign government or international organization pursuant to any 
existing or future treaty or agreement with the United States.
    (ii) The license shall reserve to the Federal agency the right to 
require the licensee to grant sublicenses to responsible applicants, on 
reasonable terms, when necessary to fulfill health or safety needs.
    (iii) The license shall be subject to any licenses in force at the 
time of the grant of the exclusive, co-exclusive or partially exclusive 
license.

[[Page 11514]]

    (b)(1) Exclusive, co-exclusive or partially exclusive foreign 
licenses may be granted on a Government owned invention provided that;
    (i) Notice of the prospective license, identifying the invention 
and prospective licensee, has been published in the Federal Register, 
providing opportunity for filing written objections within at least a 
15-day period and following consideration of such objections received 
during the period;
    (ii) The agency has considered whether the interests of the Federal 
Government or United States industry in foreign commerce will be 
enhanced; and
    (iii) The Federal agency has not determined that the grant of such 
a license will tend substantially to lessen competition or create or 
maintain a violation of the Federal antitrust laws.
    (2) In addition to the provisions of Sec.  404.5, the following 
terms and conditions apply to foreign exclusive, co-exclusive and 
partially exclusive licenses:
    (i) The license shall be subject to the irrevocable, royalty-free 
right of the Government of the United States to practice and have 
practiced the invention on behalf of the United States and on behalf of 
any foreign government or international organization pursuant to any 
existing or future treaty or agreement with the United States.
    (ii) The license shall be subject to any licenses in force at the 
time of the grant of the exclusive, co-exclusive or partially exclusive 
license.
    (iii) The license may grant the licensee the right to take any 
suitable and necessary actions to protect the licensed property, on 
behalf of the Federal Government.
    (c) Federal agencies shall maintain a record of determinations to 
grant exclusive, co-exclusive or partially exclusive licenses.


Sec.  404.9  [Removed and reserved]

0
8. Section 404.9 is removed and reserved.
0
9. Section 404.10 is revised to read as follows:


Sec.  404.10  Modification and termination of licenses.

    Before modifying or terminating a license, other than by mutual 
agreement, the Federal agency shall furnish the licensee and any 
sublicensee of record a written notice of intention to modify or 
terminate the license, and the licensee shall be allowed 30 days after 
such notice to remedy any breach of the license or show cause why the 
license shall not be modified or terminated.

0
10. Section 404.11 is revised to read as follows:


Sec.  404.11  Appeals.

    (a) In accordance with procedures prescribed by the Federal agency, 
the following parties may appeal to the agency head or designee any 
decision or determination concerning the grant, denial, modification, 
or termination of a license:
    (1) A person whose application for a license has been denied;
    (2) A licensee whose license has been modified or terminated, in 
whole or in part; or
    (3) A person who timely filed a written objection in response to 
the notice required by Sec.  404.7(a)(1)(i) or Sec.  404.7(b)(1)(i) and 
who can demonstrate to the satisfaction of the Federal agency that such 
person may be damaged by the agency action.
    (b) An appeal by a licensee under paragraph (a)(2) of this section 
may include a hearing, upon the request of the licensee, to address a 
dispute over any relevant fact. The parties may agree to Alternate 
Dispute Resolution in lieu of an appeal.

0
11. Section 404.12 is revised to read as follows:


Sec.  404.12  Protection and administration of inventions.

    A Federal agency may take any suitable and necessary steps to 
protect and administer rights to Government owned inventions, either 
directly or through contract.

0
12. Section 404.14 is revised to read as follows:


Sec.  404.14  Confidentiality of information.

    Title 35, United States Code, section 209, requires that any plan 
submitted pursuant to Sec.  404.8(h) and any report required by Sec.  
404.5(b)(6) shall be treated as commercial or financial information 
obtained from a person and privileged and confidential and not subject 
to disclosure under section 552 of Title 5 of the United States Code.

[FR Doc. 06-2166 Filed 3-7-06; 8:45 am]
BILLING CODE 3510-18-P