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§ 51.317 [Corrected] NARA received seven responses to files using FTP can be accomplished in 2. On page 69666, third column, the proposed rule, six from Federal a variety of ways. The most common paragraph (g)(3), the words ‘‘paragraphs agencies and one from a private sector methods are dial-up modems and high- (1)’’ are corrected to read ‘‘paragraphs commenter. speed or broadband Internet connections. NARA works closely with (g)(1)’’. File Transfer Protocol each individual agency in arranging its § 51.318 [Corrected] FTP is a media-less transfer method specific FTP transfers to ensure that the 3. On page 69667, second column, that can be used to transfer electronic agency has an appropriate secure means paragraph (i)(e), the words ‘‘paragraphs records. FTP operates by using special of transferring the records by FTP. (1)’’ are corrected to read ‘‘paragraphs software located at the sending and DLTtape IV (i)(1)’’. receiving sites. This software, in combination with a telecommunications DLTtape IV cartridge tape is a high- Dated: December 20, 2002. network, provides the means for density magnetic cartridge tape that can A.J. Yates, transferring electronic records. The store up to 40 gigabytes of information Administrator, Agricultural Marketing agency may send any documentation in on each cartridge. DLTtape IV tapes are Service. electronic format to NARA via FTP as used by selected tape drive units [FR Doc. 02–32805 Filed 12–27–02; 8:45 am] part of the transfer of the electronic produced by several companies. BILLING CODE 3410–02–M records or through any other acceptable DLTtape IV tape preparation will follow method of transfer as specified in 36 existing cartridge tape specifications. CFR 1228.270. One agency commented that requiring NATIONAL ARCHIVES AND RECORDS Three comments raised questions the format to be uncompressed reduces ADMINISTRATION concerning the security of FTP for some of the viability of DLT media for transferring records. One agency asked file transfer and asked NARA to 36 CFR Part 1228 whether files transferred by FTP would reconsider this requirement. NARA did be sent encrypted because there is no not adopt this comment because RIN 3095–AB03 mention of this in the proposed rule. compression can risk losing record Another agency and the non-Federal information. Expanding Transfer Options for commenter expressed similar concern One agency asked whether NARA will Electronic Records about FTP as an insecure method of provide further guidance on using these AGENCY: National Archives and Records transferring sensitive files and asked transfer methods. Yes, agencies seeking Administration (NARA). whether provisions have been made to further guidance for specific transfers of secure the transfer and receipt of files by records should contact NARA’s ACTION: Final rule. FTP. NARA is only accepting Electronic and Special Media Records SUMMARY: NARA is amending the unclassified, uncompressed, Services Division (NWME) as cited in regulations for the transfer of permanent unrestricted, and unencrypted files via §§ 1228.270(c)(1)(iii) and records to NARA by permitting two FTP. We have made provisions to secure 1228.270(c)(3)(iii). additional electronic records transfer the transfer and receipt of electronic Other Transfer Methods and Media methods, File Transfer Protocol (FTP) files transferred by FTP. and Digital Linear Tape IV (DLTtape IV). One agency asked whether there are NARA has only used media-based NARA is introducing these transfer risks to data integrity when transferring transfer methods in the past, but has methods to reduce the media and electronic records via FTP. The non- been testing other methods as well as shipping costs of electronic records Federal commenter claimed that FTP is additional media. Three agencies transferred from Government agencies, deficient for logging, or tracking and commented that NARA should continue improve record and file integrity, and recording, transfers, for authenticating to consider other methods, media, and expand the options for transfer methods. senders and receivers, and for formats for the transfer of permanent This rule will affect Government reliability. During NARA’s pilot testing electronic records. One of these agencies agencies transferring permanent of alternatives to media-based transfer mentioned that DLT tapes are evolving electronic records to the National methods, NARA has continued to to SDLT tapes that have 100/200GB Archives of the United States. evaluate various secure file transfer densities. This agency expressed applications to ensure that we have a concern that although some SDLT tape EFFECTIVE DATE: January 29, 2003. The reliable system that maintains data drives claim to be backward compatible incorporation by reference of certain with the ability to read from DLT tapes publications listed in this rule is integrity, authenticity, usability, traceability, and reliability. Any transfer of lesser densities, it is unknown approved by the Director of the Federal whether that will hold as the SDLT Register as of January 29, 2003. application NARA uses at any time will also enforce security during the transfer technology matures. One agency FOR FURTHER INFORMATION CONTACT: of permanent scheduled electronic commented that the new emerging Jennifer Davis Heaps at telephone records. standard for software and data storage is number 301–837–1801, or fax number One agency asked how data DVD and asked NARA to consider 301–837–0319. transferred by FTP will be verified for adding DVD to the approved media SUPPLEMENTARY INFORMATION: The accuracy. All electronic files, not just cited at § 1228.270(c)(2). NARA did not proposed rule was published in the June those sent via FTP, go through an adopt this comment. While DVD may 26, 2002, Federal Register (67 FR evaluation and validation review prove to be an emerging standard, it 43069) for a 60-day public comment process before the accessioning process does not currently have significant period. NARA notified Federal records is completed. presence in the industry for data officers and historical, archival, and One agency asked what specific storage. DVD lacks widespread records management organizations of telecommunication network, for standardization, market placement, and the availability of the proposed rule. A example web site or dial-up modem, is compatibility with various drive types. copy of the proposed rule was also required to transfer data via FTP. By comparison, DLT has established posted on the NARA web site. NARA’s response is that the transfer of standardization, market placement, and

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multi-drive compatibility. In addition, extensive experience with using physical media to the National Archives DLT has greater storage capacity. A DLT multiple TAR utilities on DLT for of the United States. For records tape has up to a 40 GB capacity; DVD various file sizes and types. transferred by a media-less method, has less than 5GB capacity. We intend In addition, NARA is making an NARA works with the agency to ensure to periodically review additional editorial clarification in § 1228.224(a) integrity of the records during the methods for the transfer of permanent concerning publications incorporated by transfer process. To ensure that electronic records and will add them to reference for subpart K of part 1228. permanent electronic records are the CFR where appropriate. This final rule is a significant preserved, each Federal agency must Although this final rule does not regulatory action for the purposes of transfer electronic records to NARA address the format of electronic records Executive Order 12866 and has been promptly in accordance with the described in paragraph (d), NARA is reviewed by the Office of Management agency’s records disposition schedule. exploring the acceptance of formats and Budget. As required by the Furthermore, if the agency cannot other than ASCII and EBCDIC as part of Regulatory Flexibility Act, I certify that provide proper care and handling of the its E-Government initiative. Any this rule will not have a significant media (see part 1234 of this chapter), or proposed changes in this area will be impact on a substantial number of small if the media are becoming obsolete and addressed in a separate rulemaking. entities because it applies only to the agency cannot migrate the records to Federal agencies. This regulation does Documentation newer media, the agency must contact not have any federalism or tribalism NARA to arrange for timely transfer of One agency asked whether NARA will implications. This rule is not a major permanent electronic records, even require agencies to submit hardcopy rule as defined in 5 U.S.C. Chapter 8, when sooner than provided in the documentation, such as codebooks, Congressional Review of Agency records schedule. record layouts, and data dictionaries, Rulemaking. (b) Temporary retention of copy. Each with each FTP or DLT transfer. agency must retain a second copy of any Paragraph (e) of § 1228.270, which was List of Subjects in 36 CFR Part 1228 permanent electronic records that it not modified in this rulemaking, states Archives and records, Incorporation transfers to the National Archives of the a preference for submission of required by reference. United States until it receives official documentation in electronic form, but For the reasons set forth in the notification from NARA that the transfer NARA will accept in hardcopy, preamble, NARA amends Part 1228 of was successful and that NARA has electronic form, or both. Title 36, Code of Federal Regulations, as assumed responsibility for continuing File Naming follows: preservation of the records. (c) Transfer media. This paragraph One agency commented that limiting PART 1228—DISPOSITION OF covers the transfer of permanent records the file name to the 8.3 naming FEDERAL RECORDS to the National Archives; it does not convention specified in ISO 9660–1990 apply to the use or storage of records in is unnecessarily restrictive. The agency 1. The authority citation for Part 1228 agency custody. See 36 CFR 1234.30 for said that the Joliet extension to ISO continues to read as follows: the requirements governing the 9660 allows file and folder names to be Authority: 44 U.S.C. chs. 21, 29, and 33. selection of electronic records storage extended to 64 characters and other 2. Amend § 1228.224 by revising media for current agency use. The desirable features that many current paragraph (a) to read as follows: agency must use only media that is operating systems use. NARA agrees sound and free from defects for transfers that agencies may use the Joliet § 1228.224 Publications incorporated by to the National Archives of the United extension if they comply with certain reference. States; the agency must choose restrictions, using letters, numbers, (a) General. The following reasonable steps to meet this dashes, and underscores in the file and publications cited in this section are requirement. The approved media and directory names with a slash used to hereby incorporated by reference into media-less transfer forms are open reel indicate directory structures. This this subpart K of part 1228. They are magnetic tape, magnetic tape cartridge; change has been made at available from the issuing organizations Compact-Disk, Read Only Memory (CD– § 1228.270(c)(3)(i). at the addresses listed in this section. ROM); and File Transfer Protocol (FTP) They are also available for inspection at Other Changes in This Final Rule as described in paragraphs (c) (1), (2) the Office of the Federal Register, 800 and (3) of this section. The proposed rule indicated at North Capitol Street NW., suite 700, (1) Magnetic tape. Agencies may § 1228.270(c)(1)(iii) that a Tape Archive Washington, DC. This incorporation by transfer electronic records to the (TAR) utility would be the mechanism reference was approved by the Director National Archives on magnetic tape as to group files and directories onto DLT of the Federal Register in accordance follows: cartridge tapes. After the publication of with 5 U.S.C. 552(a) and 1 CFR Part 51. (i) Open-reel magnetic tape must be the proposed rule, NARA continued These materials are incorporated as they on 1⁄2 inch 9-track tape reels recorded at earlier work with DLT on a pilot basis exist on the date of approval, and a 1600 or 6250 bpi that meet ANSI X3.39– and is changing the TAR requirement to document indicating any change in 1986, American National Standard: an option, in favor of broader file these materials will be published in the Recorded Magnetic Tape for Information transfer guidance. TAR-type utilities Federal Register. Interchange (1600 CPI, PE) or ANSI have been developed for many different * * * * * X3.54–1986, American National electronic environments. There are 3. Amend § 1228.270 by revising Standard: Recorded Magnetic Tape for several standards of TAR in the paragraphs (a), (b), (c) and by adding Information Interchange (6250 CPI, industry. However, these standards are paragraph (f) to read as follows: Group Coded Recording), respectively. subject to vendor implementation (ii) Tape cartridges may be 18-track variances and changes. A restriction on § 1228.270 Electronic records. 3480-class cartridges. The 3480-class receiving files in only a TAR format may (a) Timing of transfers. Each agency is cartridge must be recorded at 37,871 bpi pose a compliance burden on agencies. responsible for the integrity of the that meet ANSI X3.180–1990, American In addition, NARA has not had permanent records it transfers on National Standard: Magnetic Tape and

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Cartridge for Information Interchange— (iii) Tape cartridges may be DLTtape Services Division (NWME), 8601 18-Track, Parallel, 1⁄2 inch (12.65 mm), IV cartridges that must be recorded in Adelphi Rd., College Park, MD 20740– 37871 cpi (1491 cpmm), Group-Coded— an uncompressed format. Agencies 6001 or by email to [email protected] to Requirements for Recording. The data interested in transferring scheduled initiate transfer discussions. The data must be blocked at no more than 32,760 electronic records using a Tape Archive must be blocked at no more than 32,760 bytes per block. (TAR) utility should contact NARA’s bytes per block and must conform to the Electronic and Special Media Records standards cited in the table as follows:

If you are copying the records on...... then, the standard below applies.

DLTtape IV With a DLT 4000 drive ...... ISO/IEC 15307:1997, First edition, December 1, 1997, Information technology—Data interchange on 12,7 mm 128-track magnetic tape cartridges—DLT 4 format (20 GB native, 40 GB compressed, 1.5 MB/sec). DLTtape IV with a DLT 7000 drive ...... ISO/IEC 15896:1999, First edition, December 15, 1999, Information technology—Data interchange on 12,7 mm 208-track magnetic tape cartridges—DLT 5 format (35 GB native, 70 GB compressed, 5.0 MB/sec). DLTtape IV with a DLT 8000 drive ...... ISO/IEC 16382:2000, First edition, May 15, 2000, Information tech- nology—Data interchange on 12,7 mm 208-track magnetic tape car- tridges—DLT 6 format (40 GB native, 80 GB compressed, 6.0 MB/ sec).

(2) Compact-Disk, Read Only Memory (i) FTP file structure may use the 64- a signed Agreement to Transfer Records (CD–ROM). Agencies may use CD– character Joliet extension naming to the National Archives of the United ROMs to transfer electronic records convention only when letters, numbers, States (Standard Form 258) sent to the scheduled to be preserved in the dashes (-), and underscores (_) are used Office of Records Services— National Archives. The files on such a in the file and/or directory names, with Washington, DC (NWME), 8601 Adelphi CD–ROM must comply with the format a slash (\) used to indicate directory Road, College Park, MD 20740–6001. and documentation requirements structures. Otherwise, FTP file structure * * * * * specified in paragraphs (d) and (e) of must conform to an 8.3 file naming (f) Incorporation by reference. The this section. convention and file directory structure following publications cited in this (i) CD–ROMs used for this purpose as cited in ANSI/NISO/ISO 9660–1990, section are available from the American must conform to ANSI/NISO/ISO 9660– American National Standard for Volume National Standards Institute (ANSI), 25 1990, American National Standard for and File Structure of CD–ROM for West 43rd Street, 4th floor, New York Volume and File Structure of CD–ROM Information Exchange. NY 10036 or electronically at http:// for Information Exchange. (ii) Permanent electronic records must www.ansi.org/. All these standards are (ii) Permanent electronic records must be stored in discrete files, separate from also available for inspection at the be stored in discrete files. The CD– temporary files. All permanent records Office of the Federal Register, 800 North ROMs transferred may contain other must be transferred in files that contain Capitol Street, NW, Suite 700, files, such as software or temporary only permanent records. Washington, D.C. This incorporation by records, but all permanent records must (iii) When permanent electronic reference was approved by the Director be in files that contain only permanent records may be disseminated through of the Federal Register in accordance records. Agencies must indicate at the other types of mechanisms (e.g., with 5 U.S.C. 552(a) and 1 CFR part 51. time of transfer if a CD–ROM contains magnetic tape, CD–ROM), the agency These materials are incorporated by temporary records and, if so, where and NARA will mutually agree on the reference as they exist on the date of those records are located on the CD– most appropriate medium for transfer of approval and a notice of any change in ROM. The agency must also specify the records to the National Archives and these materials will be published in the whether NARA should return the CD– will select the appropriate files for FTP Federal Register. ROM to the agency or dispose of it after transfer. Several important factors may ANSI X3.39–1986, American National copying the permanent records to an limit the use of FTP as a transfer Standard: Recorded Magnetic Tape for archival medium. method, including the number of Information Interchange (1600 CPI, PE). (iii) If permanent electronic records records, record file size, and available ANSI X3.54–1986, American National that an agency disseminates on CD– bandwidth. NARA will retain approval Standard: Recorded Magnetic Tape for ROM exist on other media, such as for appropriateness of FTP as the Information Interchange (6250 CPI, magnetic tape, the agency and NARA selected mechanism for each scheduled Group Coded Recording). will mutually agree on the most records transfer based on certain criteria ANSI X3.180–1990, American appropriate medium for transfer of the (file size, FTP transfer rate, record National Standard: Magnetic Tape and records to the National Archives of the classification, etc.). Agencies interested Cartridge for Information Interchange— United States. in sending electronic records scheduled 18-Track, Parallel, 1⁄2 inch (12.65 mm), (3) File Transfer Protocol. Agencies for transfer to NARA through FTP must 37871 cpi (1491 cpmm), Group-Coded— may use File Transfer Protocol (FTP) to contact NARA’s Electronic and Special Requirements for Recording. transfer electronic records scheduled for Media Records Services Division ANSI/NISO/ISO 9660–1990, preservation at the National Archives of (NWME), 8601 Adelphi Rd., College American National Standard for Volume the United States. The files transferred Park, MD 20740–6001 or by email to and File Structure of CD–ROM for via FTP must comply with the format [email protected] to initiate the transfer Information Exchange. and documentation requirements discussions. ISO/IEC 15307:1997, First edition, specified in paragraphs (d) and (e) of (iv) Each permanent electronic December 1, 1997, Information this section. records transfer must be preceded with technology—Data interchange on 12.7

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mm 128-track magnetic tape eliminate the requirement that a foreign prosecuted by an attorney, the USPTO cartridges—DLT 4 format. applicant who seeks registration in the will send correspondence directly to the ISO/IEC 15896:1999, First edition, United States based on a registration in applicant, registrant or party, unless the December 15, 1999, Information the applicant’s home country (country applicant, registrant or party has technology—Data interchange on 12.7 of origin) submit a certification or designated a different address to which mm 208-track magnetic tape certified copy of the foreign registration. correspondence should be sent. The rule cartridges—DLT 5 format. As amended, section 44(e) requires that previously stated that the USPTO would ISO/IEC 16382:2000, First edition, the applicant submit ‘‘a true copy, a send correspondence to the domestic May 15, 2000, Information technology— photocopy, a certification, or a certified representative unless the application Data interchange on 12.7 mm 208-track copy of the registration in the country was being prosecuted by an attorney, in magnetic tape cartridges—DLT 6 format. of origin of the applicant.’’ which case the USPTO would send * * * * * The Technical Corrections Act also correspondence to the attorney. The amended sections 1(e), 8(f), 9(c), and 10 amendment is necessary because Dated: October 25, 2002. of the Trademark Act, 15 U.S.C. 1051(e), designation of a domestic representative John W. Carlin, 1058(f), 1059(c) and 1060, to eliminate is no longer mandatory. Archivist of the United States. the requirement that an applicant or Section 2.24 is amended to provide [FR Doc. 02–32818 Filed 12–27–02; 8:45 am] registrant who is not domiciled in the that an applicant not residing in the BILLING CODE 7515–01–P United States designate the name and United States may designate a domestic address of a person resident in the representative, and that if the applicant United States on whom may be served does not designate a domestic DEPARTMENT OF COMMERCE notices or process in proceedings representative (or if the person affecting the mark (‘‘domestic designated cannot be found at the United States Patent and Trademark representative’’). As amended, these address given in the designation), then Office sections provide that the applicant or notices or process in proceedings registrant ‘‘may’’ designate a domestic affecting the mark may be served on the 37 CFR Parts 1, 2 and 3 representative, and that if the applicant Director of the USPTO. This [Docket No. 2003–T–005] or registrant does not designate a incorporates the amendment of 15 domestic representative (or if the person U.S.C. 1051(e), and 1060. RIN 0651–AB58 designated cannot be found at the Section 2.33(b)(2) is amended to address in the designation), then notices require that an application under 15 Correspondence With the United or process in proceedings affecting the U.S.C. 1051(b) or 15 U.S.C. 1126 include States Patent and Trademark Office mark may be served on the Director of an allegation that the applicant believes AGENCY: United States Patent and the USPTO (‘‘Director’’). In other words, it is entitled to use the mark ‘‘in Trademark Office, Commerce. the designation of a domestic commerce’’. This corrects an oversight in the rule (which previously omitted ACTION: representative in trademark proceedings Final rule; Technical the language ‘‘in commerce’’), and Corrections Act of 2002 Rules Change. is now optional, not mandatory. The Technical Corrections Act is makes it consistent with 15 U.S.C. SUMMARY: The United States Patent and effective November 2, 2002. 1051(b)(3)(A), which requires an allegation that the applicant believes Trademark Office (‘‘USPTO’’) is revising Discussion of Specific Rules its rules of practice to simplify the itself ‘‘to be entitled to use the mark in requirements for: (1) Filing an The USPTO is amending rules commerce’’. This amendment does not application for registration based on a 1.4(d)(1)(iii)(A), 2.6(b)(8), 2.18, 2.24, change current practice. foreign registration under 15 U.S.C. 2.33(b)(2), 2.34, 2.119(d), 2.161(h), Section 2.34(a)(2)(i) is amended to 1126(e); and (2) designation of a 2.183, 3.31(a), and 3.61. provide that in an application based on domestic representative by a party who Section 1.4(d)(1)(iii)(A) is amended to the applicant’s bona fide intention to is not domiciled in the United States. delete the requirement that a party who use the mark in commerce under 15 These changes implement the changes signs a trademark document U.S.C. 1051(b), the ‘‘applicant’’ must to the Trademark Act of 1946, 15 U.S.C. electronically print, sign, date and verify that it has a bona fide intention 1051 et seq., made by the Technical maintain a paper copy of the electronic to use the mark in commerce on or in connection with the goods or services Corrections in Trademark Law Act, title submission. It is burdensome and listed in the application. The rule III, subtitle B, sec. 13207 of Pub. L. 107– inefficient for parties who file previously required verification by the 273, 116 Stat. 1758. The USPTO is also electronically to maintain both paper ‘‘trademark owner’’, but this was making some minor technical and electronic records of the filings. inconsistent with 15 U.S.C. 1051(b)(3), corrections to the rules of practice. Paper records are unnecessary because electronic records would be sufficient which requires verification by the EFFECTIVE DATE: December 30, 2002. proof of filing if a document filed ‘‘applicant’’. An intent-to-use applicant FOR FURTHER INFORMATION CONTACT: electronically were to become lost who has not yet used a mark in Mary E. Hannon, Office of the within the USPTO. commerce is not the ‘‘owner’’ of the Commissioner for Trademarks, by Section 2.6(b)(8) is amended to delete mark. This amendment does not change telephone at (703) 308–8910, extension ‘‘T-Search’’ in both places in which it current practice. 137, by e-mail at appears, and substitute ‘‘X-Search.’’ Section 2.34(a)(3)(i) is amended to [email protected], or by facsimile This merely updates the references to provide that in an application based on at (703) 872–9280. the USPTO’s electronic search system. registration of a mark in a foreign SUPPLEMENTARY INFORMATION: The Section 2.18 is amended to provide applicant’s country of origin under 15 Technical Corrections in Trademark that if an applicant, registrant or party U.S.C. 1126(e), the ‘‘applicant’’ must Law Act of 2002, Pub. L. 107–273, 116 to a proceeding who does not reside in verify that it has a bona fide intention Stat. 1758 (‘‘Technical Corrections the United States has not appointed a to use the mark in commerce on or in Act’’), amended section 44(e) of the domestic representative and the connection with the goods or services Trademark Act, 15 U.S.C. 1126(e), to application or proceeding is not being listed in the application. The rule

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