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63738 Federal Register / Vol. 71, No.

210 / Tuesday, October 31, 2006 / Proposed Rules

on this action should do so at this time. www.regulations.gov or e-mail. DEPARTMENT OF TRANSPORTATION


Please note that if EPA receives adverse www.regulations.gov is an ‘‘anonymous
comment on an amendment, paragraph, access’’ system, and EPA will not know National Highway Traffic Safety
or section of this rule and if that your identity or contact information Administration
provision may be severed from the unless you provide it in the body of
remainder of the rule, EPA may adopt your comment. If you send e-mail 49 CFR Part 512
as final those provisions of the rule that directly to EPA, your e-mail address Docket No. NHTSA–06–26140; Notice 1
are not the subject of an adverse will be automatically captured and
comment. For additional information, included as part of the public comment. RIN 2127–AJ95
see the direct final rule which is located If EPA cannot read your comment due
in the Rules section of this Federal Confidential Business Information
to technical difficulties and cannot
Register. contact you for clarification, EPA may AGENCY: National Highway Traffic
Dated: September 14, 2006. not be able to consider your comment. Safety Administration (NHTSA), DOT.
Norman Niedergang, Docket: The index to the docket for ACTION: Notice of Proposed Rulemaking.
Acting Regional Administrator, Region 5. this action is available electronically at
[FR Doc. E6–18168 Filed 10–30–06; 8:45 am] SUMMARY: This notice addresses the
http://www.regulations.gov and in hard
confidentiality of certain information
BILLING CODE 6560–50–P copy at EPA Region IX, 75 Hawthorne
that manufacturers of motor vehicles
Street, San Francisco, California. While and motor vehicle equipment submit to
all documents in the docket are listed in NHTSA pursuant to the Early Warning
ENVIRONMENTAL PROTECTION
the index, some information may be Reporting (EWR) rule. The agency is
AGENCY
publicly available only at the hard copy proposing to create class
40 CFR Part 52 location (e.g., copyrighted material), and determinations, based on Exemption 4
some may not be publicly available in of the Freedom of Information Act
[EPA–R09–OAR–2006–0747, FRL–8231–6]
either location (e.g., CBI). To inspect the (FOIA), treating certain categories of
Revisions to the California State hard copy materials, please schedule an EWR information as confidential,
Implementation Plan, Antelope Valley appointment during normal business namely production numbers (excluding
Air Quality Management District hours with the contact listed in the FOR light vehicles), consumer complaints,
FURTHER INFORMATION CONTACT section. paid warranty claims, and field reports.
AGENCY: Environmental Protection In addition, for EWR reports on deaths
Agency (EPA). FOR FURTHER INFORMATION CONTACT: Al
and injuries, NHTSA is proposing to
ACTION: Proposed rule. Petersen, Rulemaking Office (AIR–4),
create a class determination based on
U.S. Environmental Protection Agency, FOIA Exemption 6 that the last six (6)
SUMMARY: EPA is proposing to approve Region IX, (415) 947–4118, characters of the vehicle identification
revisions to the Antelope Valley Air petersen.alfred@epa.gov. number (VIN) are confidential. Finally,
Quality Management District the agency is also proposing to clarify
(AVAQMD) portion of the California SUPPLEMENTARY INFORMATION: This
proposal addresses the approval of local its Confidential Business Information
State Implementation Plan (SIP). Under rule with regard to confidentiality
authority of the Clean Air Act as AVAQMD Rule 442. In the Rules and
markings in submissions in electronic
amended in 1990 (CAA or the Act), we Regulations section of this Federal
media.
are proposing to approve local rules that Register, we are approving this local
address permitting requirements. rule in a direct final action without DATES: Comments on the proposal are
DATES: Any comments on this proposal prior proposal because we believe this due January 2, 2007.
must arrive by November 30, 2006. SIP revision is not controversial. If we See the SUPPLEMENTARY INFORMATION
receive adverse comments, however, we portion of this document for DOT’s
ADDRESSES: Submit comments,
will publish a timely withdrawal of the Privacy Act Statement regarding
identified by docket number EPA–R09–
direct final rule and address the documents submitted to the agency’s
OAR–2006–0747, by one of the
comments in subsequent action based dockets.
following methods:
• Federal eRulemaking Portal: http:// on this proposed rule. We do not plan ADDRESSES: You may submit comments
www.regulations.gov. Follow the on-line to open a second comment period, so by any of the following methods:
instructions. anyone interested in commenting • Web site: <http://dms.dot.gov>.
• E-mail: R9airpermits@epa.gov. should do so at this time. If we do not Follow the instructions for submitting
• Mail or deliver: Gerardo Rios (Air- receive adverse comments, no further comments on the DOT electronic docket
3), U.S. Environmental Protection activity is planned. For further site.
Agency Region IX, 75 Hawthorne Street, information, please see the direct final • Fax: 1–202–493–2251.
San Francisco, CA 94105. action. • Mail: Docket Management Facility;
Instructions: All comments will be U.S. Department of Transportation, 400
included in the public docket without Dated: September 1, 2006. Seventh Street, SW., Nassif Building,
change and may be made available Laura Yoshii, Room PL–401, Washington, DC 20590.
online at http://www.regulations.gov, Acting Regional Administrator, Region IX. • Hand Delivery: Room PL–401 on
including any personal information the plaza level of the Nassif Building,
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[FR Doc. E6–18172 Filed 10–30–06; 8:45 am]


provided, unless the comment includes BILLING CODE 6560–50–P
400 Seventh Street, SW., Washington,
Confidential Business Information (CBI) DC, between 9 a.m. and 5 p.m., Monday
or other information whose disclosure is through Friday, except Federal holidays.
restricted by statute. Information that • Federal eRulemaking Portal: Go to
you consider CBI or otherwise protected <http://www.regulations.gov>. Follow
should be clearly identified as such and the online instructions for submitting
should not be submitted through comments.

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Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 63739

Instructions: All submissions must H. Executive Order 13045 practical limitation on NHTSA’s
include the agency name and docket I. Regulation Identifier Number (RIN) investigations manifested itself in 2000.
number or Regulatory Identification I. Background Under the limited level of reporting
Number (RIN) for this rulemaking. For then required, the agency lacked
detailed instructions on submitting In 1966, the Congress enacted the sufficient information to identify defects
comments and additional information National Traffic and Motor Vehicle in Firestone tires mounted on Ford
on the rulemaking process, see the Safety Act (Safety Act), for the purpose Explorers.4 Numerous fatalities
Request for Comments heading of the of reducing traffic accidents and deaths occurred before NHTSA opened an
and injuries to persons resulting from investigation and Firestone conducted
SUPPLEMENTARY INFORMATION section of
traffic accidents. 49 U.S.C. 30101.1 recalls.
this document. Note that all comments
Since it was amended in 1974,2 the On November 1, 2000, Congress
received will be posted without change
Safety Act has contained a series of enacted the Transportation Recall
to <http://dms.dot.gov>, including any
provisions that address motor vehicles Enhancement, Accountability, and
personal information provided. Please
and motor vehicle equipment that Documentation (TREAD) Act. Pub. L.
see the Privacy Act heading under
contain a potential or actual defect that No. 106–414, 114 Stat. 1800. The
Rulemaking Analyses and Notices.
Docket: For access to the docket to is related to motor vehicle safety. TREAD Act added provisions to the
First, the Act requires a manufacturer Safety Act that expanded the scope of
read background documents or
to notify NHTSA and the vehicle or the information manufacturers submit to
comments received, go to <http://
equipment owners if it learns of a defect NHTSA prior to a manufacturer-
dms.dot.gov> at any time or to Room
and decides in good faith that the defect initiated recall. In relevant part, the
PL–401 on the plaza level of the Nassif
is related to motor vehicle safety. 49 TREAD Act required the Secretary of
Building, 400 Seventh Street, SW.,
U.S.C. 30118(c). This duty is Transportation to publish a rule setting
Washington, DC, between 9 a.m. and 5
independent of any action by NHTSA.3 out the early warning reporting (EWR)
p.m., Monday through Friday, except
Ordinarily, a manufacturer’s notice is requirements to enhance the agency’s
Federal holidays.
followed by the manufacturer’s ability to carry out the Act. 49 U.S.C.
FOR FURTHER INFORMATION CONTACT: provision of a free remedy to owners of
Michael Kido, Office of Chief Counsel, 30166(m). In general, the TREAD Act
defective vehicles and equipment. See authorized the agency to require
NHTSA, telephone (202) 366–5263, 49 U.S.C. 30120. Collectively, the
facsimile (202) 366–3820, 400 Seventh manufacturers to submit information
manufacturer’s notice and remedy are that may assist in the early
Street, SW., Washington, DC 20590. known as a recall. identification of defects related to motor
SUPPLEMENTARY INFORMATION: Second, Congress provided NHTSA vehicle safety. Id.
Table of Contents with considerable investigative and In July 2002, NHTSA promulgated the
enforcement authority. The Safety Act EWR rule. 67 FR 45822 (July 10, 2002).5
I. Background authorizes NHTSA to conduct Generally, the EWR rule required
II. Information Submissions Before and After investigations and to require
the EWR Rule Became Effective certain manufacturers of motor vehicles
manufacturers to submit reports to (e.g., automobiles and other light
A. Pre-TREAD Act Transmissions of
Information to NHTSA enable the agency to determine vehicles, trucks, buses, motorcycles, and
B. The Early Warning Reporting compliance with the statute. 49 U.S.C. trailers) and motor vehicle equipment
Requirements 30166(b), (e). In addition, NHTSA may (e.g., tires and child restraints) to submit
C. Manufacturer Submissions of EWR initiate administrative enforcement data regarding production numbers
Information proceedings to decide whether a motor (cumulative total vehicles or equipment
III. The Proposed Rule on the Confidentiality vehicle or motor vehicle equipment manufactured annually), incidents
of EWR Information contains a safety-related defect or does involving death or injury based on
A. Class Determinations Based on FOIA not comply with applicable standards. claims and notices, property damage
Exemption 4
An investigation may culminate in claims, consumer complaints, warranty
1. Basis for Exemptions
2. Proposed Class Determinations on the NHTSA’s order to the manufacturer to claims paid, and field reports
Confidentiality of EWR Data provide notification of a safety-related (collectively ‘‘early warning data’’) on a
a. Production Numbers defect or a noncompliance to owners of quarterly basis. See 49 CFR 579.21–26.
b. Consumer Complaints the vehicle or equipment. 49 U.S.C. The information is submitted
c. Warranty Claims 30118(a)–(b). electronically to the agency in a
d. Field Reports As a practical matter, if a standardized format.6
e. Common Green Tire Identifiers manufacturer has not submitted a notice The EWR rule did not address the
f. Other Issues To Be Considered of a safety-related defect to NHTSA and confidentiality of EWR data, but noted
B. EWR Class Determination Based on if the agency has not received that this issue would be considered as
FOIA Exemption 6
information that provides a sufficient
IV. Exemption 3
V. Other EWR Data basis for the opening of an investigation, 4 Background information on this matter is

it has been unlikely that NHTSA would available through NHTSA’s defects investigation
VI. Identifying Confidential Information Web site at http://www-odi.nhtsa.dot.gov/cars/
Located in Electronic Files investigate a potential problem. This problems/defect/defectsearch.cfm. Enter
VII. Request for Comments ‘‘EA00023’’ in the ‘‘NHTSA Action Number’’ box
VIII. Privacy Act Statement 1 Pub. L. No. 89–563, 80 Stat. 718. This preamble and click on ‘‘search’’.
IX. Regulatory Analyses and Notices will use the current citations to the United States 5 Thereafter, NHTSA published amendments to

A. Executive Order 12866 and DOT Code. In 1994, the Safety Act, as amended, was the EWR rule. As used herein, the references to the
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Regulatory Policies and Procedures repealed, reenacted, and recodified without EWR rule are to the rule as amended. The reader
material change as part of the recodification of Title should note that the discussion of the EWR rule in
B. Regulatory Flexibility Act 49 of the United States Code. See Pub. L. No. 103– this notice is a summary. The full text of the rule
C. National Environmental Policy Act 272, 108 Stat. 745, 1379, 1385 (1994) (repealing); id. and associated Federal Register notices should be
D. Executive Order 13132 (Federalism) at 745, 941–73 (1994) (reenacting and recodifying consulted for a full description.
E. Unfunded Mandate Reform Act without substantive changes). 6 Subsequently, in response to petitions for
F. Executive Order 12988 (Civil Justice 2 Pub. L. No. 93–492, 88 Stat. 1470 (1974).
reconsideration, the rule was amended but these
Reform) 3 United States v. General Motors Corp., 574 F. amendments are not germane to the rulemaking at
G. Paperwork Reduction Act Supp. 1047, 1049 (D.D.C. 1983). hand.

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63740 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules

part of the proposed amendments to EWR data was precluded by a specific 2005), 573.8 (1995–2001). Third,
NHTSA’s confidential business disclosure provision in the TREAD Act, manufacturers submitted information to
information rule. See 67 FR at 45866, 49 U.S.C. 30166(m)(4)(C).8 RMA the agency during investigations of
n.6. The agency addressed the asserted that this provision met the particular vehicles and equipment (such
confidentiality of EWR data in its July requirements of FOIA Exemption 3, as tires) undertaken by ODI. Finally,
2003 final rule on Confidential Business which allows the withholding of manufacturers submitted reports that
Information (CBI) rule. 49 CFR part 512, information prohibited from disclosure certain motor vehicles and equipment
68 FR 44209 (July 28, 2003). In addition by another statute. 5 U.S.C. 552(b)(3). contained safety-related defects
to establishing revised general In a supplemental memorandum pursuant to 49 CFR part 573 (Defect and
requirements governing claims of opinion filed on July 31, 2006, the Court Non-Compliance Responsibility and
confidentiality and NHTSA rulings on accepted RMA’s argument that it should Reports) after determining that such a
these claims, the CBI rule addressed the consider the Exemption 3 claim, but defect exists. See 49 U.S.C. 30118(c).
confidentiality of EWR data. The CBI held that the TREAD Act’s disclosure On average, during the five years
rule established a new Appendix C provision was not an Exemption 3 preceding the TREAD Act, ODI
setting forth class determinations statute. See Public Citizen, Inc. v. conducted approximately 83
treating EWR information on production Mineta, 444 F. Supp. 2d 12 (D.D.C. investigations of potential safety related
numbers (excluding light vehicles), 2006). On August 24, 2006, RMA filed defects per year. On average, 64 of these
consumer complaints, warranty claims, a motion seeking either a judgment were first stage investigations known as
and field reports as confidential. 49 CFR under Federal Rule of Civil Procedure Preliminary Evaluations (PEs). The
part 512 App. C. Other EWR data were 54(b) or certification of interlocutory remaining ones were second-stage
not specifically covered by the CBI rule. appeal under 28 U.S.C. 1292(b) of the investigations—Engineering Analyses
The agency based these class District Court’s decision regarding (EAs).
determinations on the substantial Exemption 3. On September 5, 2006, the During the five (5) years following
competitive harm and impairment District Court granted RMA’s motion. enactment of the TREAD Act, these
standards of Freedom of Information On September 28, 2006, RMA filed a numbers have remained roughly the
Act (FOIA) Exemption 4. See 5 U.S.C. Notice of Appeal of the Judgment of July same, with the agency conducting
552(b)(4); 49 CFR part 512 App. C. 31, 2006 and associated orders. approximately 84 investigations
In April 2004, NHTSA responded to In light of the District Court’s annually (66 PEs, 28 EAs). In most of
petitions for reconsideration of the July decisions, NHTSA is proposing a rule to these investigations, ODI issued
2003 CBI rule. 69 FR 21409 (April 21, address the confidentiality of EWR information requests to manufacturers.
2004). The agency amended the rule by information through specific class A review of the submissions received
adding two class determinations to determinations based on FOIA from manufacturers over a recent one-
Appendix C based on FOIA Exemptions Exemptions 4 and 6. Our proposal, year period revealed that nearly every
4 and 6. One class determination, based which sets forth determinations largely PE or EA submission to the agency
on Exemption 4, covered common green similar to our prior determinations, involved a request for confidential
tire identifiers submitted by tire addresses the District Court’s notice and treatment.10
manufacturers under 49 CFR 579.26(d).7 comment concerns. B. The Early Warning Reporting
The Exemption 6 class determination Requirements
covered the last six (6) characters of II. Information Submissions Before and
vehicle identification numbers (VINs) After the EWR Rule Became Effective The TREAD Act dramatically changed
contained in EWR death and injury A. Pre-TREAD Act Transmissions of the nature and amount of information
reports submitted to NHTSA. See e.g., Information to NHTSA manufacturers submit to NHTSA. The
49 CFR 579.21(b)(2). EWR rule requires specified
Prior to the enactment of the TREAD manufacturers to submit a broad array of
Public Citizen challenged the legality
Act, NHTSA received information on information on each make and model of
of Appendix C to 49 CFR part 512. In
potential and actual safety-related vehicle and child seat, and substantial
a March 31, 2006 decision, the United
defects in motor vehicles through tire line that they manufacture. The
States District Court for the District of
Columbia ruled that NHTSA had the several primary mechanisms. First, EWR requirements apply mainly to
authority to promulgate the rule making vehicle owners submitted complaints larger manufacturers of motor vehicles
categorical confidentiality (also known as vehicle owner and tires, and all manufacturers of child
determinations for classes of EWR data. questionnaires (VOQs)) 9 to NHTSA’s restraint systems (see 49 CFR part 579).
Public Citizen, Inc. v. Mineta, 427 F. Office of Defects Investigation (ODI). In general, vehicle manufacturers who
Supp. 2d 7, 12–14 (D.D.C. 2006). The These complaints tended to identify annually produce 500 or more vehicles
District Court also concluded, however, problems consumers had experienced in in a category must submit quarterly
that NHTSA had not provided adequate their vehicles. Second, manufacturers reports with regard to the following
notice and opportunity to comment on provided copies of technical service categories of vehicles: light vehicles,
those determinations at the time of the bulletins and other communications medium-heavy vehicles and buses,
proposed rule, id. at 14–17. The Court transmitted to more than one trailers, and motorcycles. The reporting
remanded the matter to NHTSA but did manufacturer, dealer or owner. See 49 information required of these
not address the parties’ other claims. Id. U.S.C. 30166(f); 49 CFR 579.5 (2002– manufacturers is summarized below:
Thereafter, intervenor Rubber 8 In reference to information provided by • Production. These manufacturers must
Manufacturers Association (RMA) filed
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manufacturers pursuant to the EWR rule, 49 U.S.C. report the number of vehicles, child restraint
a motion to amend the judgment to § 30166(m)(4)(C) states: ‘‘Disclosure. None of the
address its claim that the disclosure of information collected pursuant to the final rule 10 Out of 276 requests for confidential treatment
promulgated under paragraph (1) [the EWR rule] we received from July 1, 2005 through June 30,
7 The term ‘‘common green tires’’ refers to ‘‘tires shall be disclosed pursuant to section 30167(b) 2006, approximately 30% (83) involved requests
that are produced to the same internal unless the Secretary determines the disclosure of related to a PE (52) or EA (31). These numbers do
specifications but that have, or may have, different such information will assist in carrying out sections not include requests related to other enforcement-
external characteristics and may be sold under 30117(b) and 30118 through 30121.’’ related activities, such as compliance investigations
different tire line names.’’ 49 CFR § 579.4. 9 See http://www-odi.nhtsa.dot.gov/ivoq/. or recall-related queries.

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Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 63741

systems, and tires, by make, model, and 2003. Field reports (copies of non-dealer submitted to the agency under 49 CFR 579
model (or production) year, during the reports) were first submitted on or about subpart C, will cause substantial competitive
reporting period and the prior nine model July 1, 2004. 68 FR 35145, 35148 (June harm and will impair the government’s
years (prior four years for child restraint ability to obtain this information in the future
11, 2003) (specifying deadline
systems and tires). if released:
• Consumer complaints. These submissions for EWR reports). Since the (1) Reports and data relating to warranty
manufacturers (other than tire manufacturers) EWR rule’s data submission claim information;
must report the numbers of consumer requirements began in December 2003, (2) Reports and data relating to field
complaints they receive that are related to manufacturers have submitted large reports, including dealer reports, product
problems with certain specified components amounts of information. Over 500 evaluation reports, and hard copies of field
and systems. Manufacturers of child restraint manufacturers have regularly submitted reports; and
systems must report the combined number of reports and collectively submitted (3) Reports and data relating to consumer
such consumer complaints and warranty thousands of reports, making the complaints.
claims, as discussed below. (b) In addition, the Chief Counsel has
volume of the incoming data extensive.
• Property damage. These manufacturers determined that the following information
(other than child restraint system NHTSA has received reports on more required to be submitted to the agency under
manufacturers) must report the numbers of than 8 million consumer complaints, 49 CFR 579, subpart C, will cause substantial
claims for property damage that are related 138 million warranty claims, and nearly competitive harm if released:
to alleged problems with certain specified 5 million field reports (all aggregated) (1) Reports of production numbers for
components and systems, regardless of the from light vehicle manufacturers. Other child restraint systems, tires, and vehicles
amount of such claims. manufacturers have also provided a other than light vehicles, as defined in 49
• Warranty claims information. These large volume of aggregated data for the CFR 579.4(c); and
manufacturers must report the number of agency to analyze: heavy and medium (2) Lists of common green tire identifiers.
warranty claims (adjustments for tire
bus manufacturers—over 246,000 1. Basis for Exemptions
manufacturers), including extended warranty
and good will, they pay that are related to consumer complaints, nearly 7 million
Consistent with our prior approach,
problems with certain specified components warranty claims, and nearly 245,000
the agency proposes creating categories
and systems. As noted above, manufacturers field reports; trailer manufacturers—
based on Exemption 4 of the FOIA, 5
of child restraint systems must combine these nearly 66,000 consumer complaints,
U.S.C. 552(b)(4). Under Exemption 4,
with the number of reportable consumer over 1.2 million warranty claims, and
complaints. the standard for assessing the
over 18,000 field reports; motorcycle
• Field reports. These manufacturers (other manufacturers—over 35,000 consumer confidentiality of required submissions
than tire manufacturers) must report the total complaints, over 687,000 warranty of information is whether disclosure is
number of field reports they receive from the
claims, and over 91,000 field reports; likely either to cause substantial
manufacturer’s employees, representatives, competitive harm to the originating
and dealers, and from fleets, that are related tire manufacturers—over 1 million
warranty claims; and child restraint entity or to impair the government’s
to problems with certain specified ability to obtain necessary information
components and systems. In addition, manufacturers—nearly 43,000 warranty
manufacturers must provide copies of certain claims and over 7,000 field reports. in the future. National Parks &
field reports received from their employees, Conservation Ass’n v. Morton, 498 F.2d
representatives, and fleets, but are not III. The Proposed Rule on the 765, 770 (D.C. Cir. 1974). Meeting the
required to provide copies of reports received Confidentiality of EWR Information competitive harm standard requires that
from dealers. A. Class Determinations Based on FOIA there be ‘‘actual competition and a
• Deaths. These manufacturers must report likelihood of substantial competitive
Exemption 4
certain specified information about each injury’’ from disclosure of the
incident involving a death that occurred in In view of the Court’s decision in information. CNA v. Donovan, 830 F.2d
the United States that is identified in a claim Public Citizen, Inc. v. Mineta, NHTSA is 1132, 1152 (D.C. Cir. 1987). Assessing
(as defined) against and received by the initiating a new rulemaking proceeding
manufacturer. They must also report the effect of disclosure under the
and proposing to adopt class impairment prong requires a ‘‘rough
information about incidents involving a determinations that address the
death in the United States that is identified balancing’’ of the extent of impairment
in a notice received by the manufacturer
confidential treatment of certain EWR and the information’s importance
alleging or proving that the death was caused information. In general, NHTSA is against the public’s interest in
by a possible defect in the manufacturer’s proposing to adopt the class disclosure. Washington Post v. Dep’t of
product. Finally, they must report on each determinations promulgated in 2003 Health and Human Services, 690 F.2d
death occurring in a foreign country that is and 2004.11 The new class 252, 269 (D.C. Cir. 1982).
identified in a claim against the manufacturer determinations we are proposing for
involving the manufacturer’s product, or one
We note that motor vehicle and motor
EWR data are based on FOIA Exemption vehicle equipment manufacturers who
that is identical or substantially similar to a 4 and would be set out in a new
product that the manufacturer has offered for are required to submit EWR data operate
Appendix C to 49 CFR part 512, which in a highly competitive business
sale in the United States.
• Injuries. These manufacturers must
would read as follows: environment. See http://stats.bls.gov/
report certain specified information about Appendix C—Early Warning Reporting Class oco/cg/cgs012.htm (generally describing
each incident involving an injury that is Determinations the nature of the motor vehicle and
identified in a claim against and received by (a) The Chief Counsel has determined that parts industry). In light of the highly
the manufacturer, or that is identified in a the following information required to be competitive environment in which these
notice received by the manufacturer which
notice alleges or proves that the injury was manufacturers operate, the
11 Minor changes from the 2003 rule, as amended
comprehensive EWR data that they
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caused by a possible defect in the in 2004, are reflected in this proposed new
manufacturer’s product. Appendix C. One change parallels proposed
submit possess commercial value to the
changes to the EWR rule involving the submitting manufacturers, competitors,
C. Manufacturer Submissions of EWR identification of product evaluation reports. The and others such as suppliers who are
Information proposed changes to the EWR regulation were interested in these types of data. These
published on September 1, 2006. 71 FR 52040.
EWR reporting was phased-in, with Another change to Part 512 is the relocation of
data are standardized and, as discussed
the first quarterly EWR reports Appendix C’s subparagraph addressing common above, the EWR reports contain
submitted on or about December 1, green tires. identical informational elements for

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63742 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules

each regulated manufacturer category NHTSA’s position that the agency had competitor’s capacity to manufacture
under the EWR rule. See 49 CFR part the authority to do so. Id. certain products) and, separately,
579 subpart C. These reports are suppliers would use the information to
2. Proposed Class Determinations on the
submitted pursuant to standardized gain a competitive advantage over a
Confidentiality of EWR Data
electronic reporting templates that are submitter during pricing negotiations, in
used repeatedly from reporting period to Based on NHTSA’s authority, as instances such as when they could
reporting period. Each manufacturer in recently confirmed in the District determine that they are the sole
a regulatory category reports on the Court’s decision, to make categorical supplier; (2) bus manufacturers would
same systems and components and class determinations, we are proposing use production information to chart the
provides a snapshot of that to create such classes based on overall market and the strengths and
manufacturer’s experience for each of Exemption 4 for the EWR data weaknesses of the reporting entity’s
the standard informational elements. categories listed below. business within specific makes and
Further, as we explain below, under a. Production Numbers models; (3) because product plans are
the TREAD Act, manufacturers need based upon an evolution of production
The EWR rule requires certain
only produce that information which direction and experience, disclosure of
manufacturers to submit the number of
they already collect. In light of this fact, motorcycle production information
vehicles, tires and child restraint
on balance, the disclosure of certain would expose manufacturers’ future
systems, by make, model, and model (or
categories of EWR information plans to competitors; (4) child restraint
production) year, produced during the
(consumer complaints, warranty claims, manufacturers would use production
model year of the reporting period and
and field reports) is more likely to cause data to assess their competitors’
the prior nine model years (prior four
manufacturers to scale back their years for child restraint systems and production capabilities, sales and
collection efforts, which would impair tires). See 49 CFR 579.21–26. market performance through means
the agency’s ability to obtain EWR data Production figures for models of otherwise unavailable without
in future submissions, than if the motor vehicles, other than light considerable market research expense;
information were not disclosed. Without vehicles, and for tires and child and (5) the disclosure of tire production
the collection of comprehensive data by restraints are not publicly available.12 numbers by brand and size would result
manufacturers, the effectiveness of the As noted above, NHTSA proposes to in competitive harm to the
EWR program would be adversely include EWR production figures, other manufacturers by revealing specific and
impacted. than for light vehicles, in a class critical information about those
Additionally, as reflected by the determination of confidentiality based companies’ sales and marketing
number of EWR submissions when on the competitive harm prong of strategies. We note that in the context of
compared to the number of National Parks. EWR production data individual investigations, the agency
confidentiality requests that reveal a variety of valuable information, has generally granted confidential
manufacturers submit to the agency in including a company’s production treatment to production data on child
the course of defect investigations noted capacity, the sales and market restraints and tires submitted to NHTSA
above, if NHTSA were to attempt to performance of its individual but released past light vehicle
process individualized requests for products,13 and the success of its production numbers, which, as noted
confidentiality of individual EWR marketing strategies. This market- above, are generally available to the
submissions, the agency would be related information would be valuable public and have generally not been
overwhelmed. A huge backlog would to the reporting manufacturer’s granted confidential status.
develop and grow. During the time that competitors, who commonly want to b. Consumer Complaints
NHTSA was processing these requests know how well products sell, including
for confidentiality, nothing would be how well their competitors’ products The EWR rule requires larger volume
released. The situation would be similar have been and are selling. The vehicle manufacturers and all child
to the substantial FOIA request backlog competitors would use the production restraint manufacturers to submit the
experienced at some agencies. information in their own product number of consumer complaints
Moreover, submissions would not be planning and marketing. For example, received broken out, for each make and
released until the individual processing the release of this EWR production model, by specific categories such as
was completed. The net effect would be information would likely have the system component, fire and rollover—
to hamper agency efforts to address following impacts: (1) Medium-heavy all of which are binned by code. 49 CFR
these claims for confidential treatment vehicle manufacturers would use a 579.4, 579.21–26. Consumer complaints
expeditiously and likely divert rival’s production information to are defined by the regulation as:
resources from other efforts, including monitor the competitor’s production [A] communication of any kind made by a
pursuing other enforcement activities. capacity (which would reveal that consumer (or other person) to or with a
The District Court recognized this manufacturer addressed to the company, an
possibility when it ruled that categorical 12 The basis for excluding EWR production data
officer thereof or an entity thereof that
rules that address the confidentiality of on light vehicles (‘‘any motor vehicle, except a bus, handles consumer matters, a manufacturer
motorcycle, or trailer, with a gross vehicle weight
EWR data are necessary ‘‘to allow the rating of 10,000 lbs or less,’’ 49 CFR § 579.4) from
Web site that receives consumer complaints,
agency to administer the EWR program the proposed class determination on confidentiality a manufacturer electronic mail system that
effectively,’’ Public Citizen, 427 F. is that those data are publicly available. Information receives such information at the corporate
Supp. 2d at 13, and that the agency was that is already publicly available cannot be level, or that are otherwise received by a unit
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withheld by an agency under Exemption 4. Niagara within the manufacturer that receives
‘‘justified in making categorical rules to Mohawk Power Corp. v. Dep’t of Energy, 169 F.3d consumer inquiries or complaints, including
manage the tasks assigned to it by 16, 19 (D.C. Cir. 1999). We note that more detailed telephonic complaints, expressing
Congress under the TREAD Act.’’ Id. production data on light vehicles, such as detailed dissatisfaction with a product, or relating the
In the recent Public Citizen case, the production information by engine and transmission
combination, is not publicly available and has been
unsatisfactory performance of a product, or
parties submitted briefs on NHTSA’s granted confidentiality. any actual or potential defect in a product,
authority to issue categorical 13 See, e.g. http://www.claritas.com/claritas/ or any event that allegedly was caused by any
determinations. The court accepted Default.jsp?ci=2&pn=cs_bmwusa. actual or potential defect in a product, but

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not including a claim of any kind or a notice Under the early warning reporting Manufacturers of child restraint systems
involving a fatality or injury.14 provisions of the Safety Act, however, must combine these data with the
NHTSA proposes to include EWR NHTSA may not require a manufacturer number of reportable consumer
consumer complaint data in a class of a motor vehicle or motor vehicle complaints. The warranty information is
determination of confidentiality based equipment to maintain or submit reported on a detailed make/model basis
on both the competitive harm and records respecting information not in and categorized with reference to the
impairment prongs of National Parks. the possession of the manufacturer. 49 twenty-two categories defined in the
The commercial value of consumer U.S.C. 30166(m)(4)(B). In other words, EWR regulation.
complaint data is well-recognized. NHTSA may require manufacturers to NHTSA proposes to include EWR
Complaint data are a valuable data submit reports based on information warranty data in a class determination
source used by companies to help them that they have collected but may not of confidentiality based on both the
identify areas of concern, including require manufacturers to collect competitive harm and impairment
product performance, to consumers and information not otherwise collected. prongs of National Parks. Warranty
provide guidance on where to allocate In view of the fact that the quantity claims data generally reflect a repair
their limited resources.15 The disclosure and comprehensiveness of the EWR paid for by a manufacturer under a
of EWR complaint numbers would consumer complaint data depend in warranty. The commercial value of
provide competitors with aggregated substantial part on the willingness of warranty complaint data is well known.
data on the performance of entire manufacturers to collect this Warranty data are a valuable data source
product lines and key, individual information through a broad and multi- used by companies in identifying
systems and/or components. In view of input approach, NHTSA does not want problem trends early in the life of a
the competitive value of these data, to take steps that discourage the vehicle or equipment, before the
NHTSA has tentatively concluded that collection efforts. NHTSA is concerned expiration of the warranty. The EWR
the release of EWR consumer complaint that the routine disclosure of EWR warranty data provide comprehensive,
data would cause substantial harm to consumer complaint information would competitively valuable information
the competitive position of the discourage these efforts, and ultimately about the field experience of
manufacturer that collected and reduce the amount of information components and systems across all
reported them. manufacturers collect. This would makes and models. Many components
Companies may receive customer impair our ability to obtain this and systems are updated over time to
input and feedback on product information in the future for analysis. It incorporate new technologies or to
performance in a variety of ways and would adversely impact not only the achieve cost savings. They may be
establish differing practices for the EWR program as a whole, but a provided by different suppliers. The
receipt of customer complaints, which reduction in complaint data would also manufacturer’s warranty experience
are taken into account by the definition significantly impact individual with various components and systems is
of consumer complaint. To obtain these investigations in which ODI routinely a valuable dataset.17 The disclosure of
data, companies may, for example, considers and follows up on such data. EWR warranty numbers would provide
increase the staff available at their toll- The disclosure of these data, however, competitors with aggregated data on the
free telephone numbers or create web- would be of limited value to the public. performance of entire product lines and
based systems through which Complaint data frequently involves key, individual systems and/or
consumers can make complaints issues that are not safety-related. On components. Competitors would use
instantly by electronic mail. More balance, the importance of the this information to assess the in-use
consumer input channels increase the information to the agency’s ability to performance of parts and systems. It
robustness of the available data. In help it identify potential safety defects would be used in purchasing, pricing,
addition to providing valuable and the associated impairment outweigh and sourcing decisions, all of which
information to the company, consumer the smaller interest in its public would be likely to have competitive
complaints provide feedback on product disclosure. Thus, the agency proposes to impacts. Accordingly, NHTSA has
performance that can be valuable to withhold these data under Exemption 4. tentatively concluded that the release of
NHTSA in identifying problems, the EWR warranty data would cause
including potential defects that may c. Warranty Claims substantial harm to the competitive
point to the presence (or absence) of a Under the EWR rule, manufacturers of position of the manufacturer that
safety problem. The agency seeks to more than 500 vehicles per year and tire collected and reported them.
ensure that it receives as much manufacturers must report warranty Warranties vary in length (e.g., years,
information as possible to identify claims (warranty adjustments for tire miles) and scope (e.g., 3 years/36,000
possible defect trends. manufacturers) they paid for specified
14 49
components and systems broken down 17 Published reports illustrate the extent to which
CFR § 579.4(c). the industry as a whole relies on and uses sensitive
15 See e.g., John Goodman & Steve Newman, Six
by component, make, model and model
warranty information. For example, GM uses its
Steps to Integrating Complaint Data into QA year. 49 CFR 579.21–26. Repairs made warranty data to help it pinpoint problem areas and
Decisions, 36 Quality Progress, Issue 2 (Feb. 1, outside of warranties that are covered by to help it reduce its warranty costs. See, e.g.,
2003) (stressing the importance of complaint data ‘‘good will’’ are also reported under Gregory L. White, GM Takes Tips from CDC to
in helping to identify issues with products and the warranty claims and warranty Debug its Fleet of Cars, Wall St. J., April 8, 1999,
data’s effectiveness in assisting companies with at B1 (noting GM’s adaptation of the
resource allocation decisions to address quality adjustments.16 49 CFR 579.4. epidemiological system used by the Centers for
assurance issues) and Edward Bond & Ross Fink, Disease Control and Prevention to warranty issues)
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Meeting the Customer Satisfaction Challenge, 43 16 These data include ‘‘good will’’ repairs that are and A Message to Dealers Regarding the Ford Recall
Industrial Management, Issue 4 (July 1, 2001) conducted and paid for by the manufacturer outside of Firestone Wilderness AT Tires and General
(noting the importance of measuring customer of the warranty. ‘‘Good will’’ means ‘‘the repair or Motors Continued Use of Firestone Tires on its
satisfaction, describing customer complaints as a replacement of a motor vehicle or item of motor Vehicles, (May 25, 2001) (stating that GM and
data source to a company that can create a ‘‘big vehicle equipment, including labor, paid for by the Firestone tire engineers ‘‘are on site at GM’s tire and
benefit’’ from small changes, and emphasizing the manufacturer, at least in part, when the repair or wheel laboratory two days a week’’ to ‘‘monitor tire
need for companies to make it convenient for replacement is not covered under warranty, or warranty data’’). Both of these documents are
consumers to complain). Both articles are available under a safety recall reported to NHTSA under part available in Docket No. NHTSA–2002–12150, Item
in Docket No. NHTSA–2002–12150, Item No. 65. 573 of this chapter.’’ 49 CFR § 579.4. No. 65.

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63744 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules

miles vs. 4 years/50,000 miles). Other provide information on field reports and reports have also been indicative of
things being equal, we believe that copies of non-dealer field reports. In potential defect trends. Since the agency
companies with more generous general, as in other categories of EWR can require only that manufacturers
warranty and good will programs will data, the field report data are provided submit information about, and copies of,
have a higher number of warranty by make, model and model year and, those field reports that companies
claims than those with more limited further, by numerous specified systems choose to prepare and/or obtain, there is
policies. The more generous the and components. 49 CFR 579.21–25. a substantial risk that the agency’s
warranty policies (such as longer Field reports reflect the in-use ability to obtain this information in the
warranty coverage), the more warranty experience of a manufacturer’s product, future would be impaired, which would
data that will be subject to disclosure to collected by the company at its expense adversely affect the program’s
NHTSA. and with the intent of identifying effectiveness. See 49 U.S.C.
Because of the data’s commercial problems with its products. The nature, 30166(m)(4)(B). By contrast, the value of
value and the manner in which they can quality and quantity of field reports these data would be limited to the
be used, the disclosure of this vary, with reports from some companies public. The technical data and reports of
information would reduce the reflecting their pursuit of detailed the number of field reports would not
willingness of manufacturers to feedback, and those from others yielding readily identify safety-related issues. As
maintain extensive warranty programs less information. For others, a field such, the agency does not believe that
including extended warranties and good report is more akin to a technical these data and numbers would contain
will, which could ultimately reduce the investigation into a problem detected information that would be informative
availability of robust warranty through warranty, consumer complaint to the public with regard to vehicle
information in the future. ODI would or other information available to the safety. In balancing the interests in
have substantially less information to company. disclosure, the agency has tentatively
analyze in investigating potential NHTSA proposes to include EWR concluded that the impacts to the
defects.18 Also consumers would field report information in a class agency’s ability to identify safety defects
receive fewer free repairs under determination of confidentiality based from these technically-rich reports—as
warranty programs, which in addition to on both the competitive harm and well as the competitive impacts to
being economically disadvantageous, impairment prongs of National Parks. submitters—outweigh the interest the
would in some instances adversely Field report information would identify public has in disclosure of this
affect motor vehicle safety because systems and components that have information. Consequently, the agency
vehicles would not be repaired. experienced malfunction or proposes to withhold this information
However, the EWR information would performance issues, in quantitative under Exemption 4.
not be useful to the public in comparing terms in all products. More particularly,
the field reports would reveal specific e. Common Green Tire Identifiers
vehicles or equipment because of the
differences in warranty terms and problems associated with particular The EWR rule requires certain tire
corporate warranty practices—which components and systems. Overall, the manufacturers to provide a list of
would could cause the public to derive information would reveal aspects of a common green tire data. 49 CFR
incorrect conclusions from the vehicle’s performance (whether § 579.26(d). ‘‘Common greens’’ are tires
information. The rough balancing under potentially safety-related or not) that a ‘‘that are produced to the same internal
the impairment prong weighs in favor of manufacturer deems important in its specifications but that have, or may
withholding this information, as the commercial efforts. If EWR field report have, different external characteristics
public interest favoring disclosure is information were disclosed, the and may be sold under different tire line
small and the adverse effects reporting manufacturer’s competitors names.’’ 49 CFR 579.4(c). NHTSA
accompanying disclosure are would have access to comprehensive proposes to include EWR common green
substantial. Thus, the agency proposes data involving malfunction or tire data in a class determination of
to withhold EWR warranty information performance issues covering all confidentiality based on the competitive
under Exemption 4. products. Such information, if publicly harm prong of National Parks. The
released, would be of substantial value common green tire information reveals
d. Field Reports to competitors, who could avert similar the identities of tires that share the same
Field reports are communications issues or improve their products internal specifications and relationships
from a manufacturer’s representative or without the need to invest in market between manufacturers and private
dealer about a malfunction or research, engineering development, or brand name owners. Tire manufacturers
performance problem. 49 CFR 579.4. actual market experience. NHTSA has previously indicated that these data are
The EWR rule requires manufacturers of tentatively concluded that their release particularly valuable because they
specified vehicles and child restraints to would cause substantial harm to the permit competitors to assess individual
competitive position of the manufacturer capabilities and marketing
18 Manufacturers may choose to make available to manufacturer that collected and strategies. 69 FR at 21417.
their customers warranties of longer duration and reported them.
broader mileage (e.g., a company may offer a 5-year/ Manufacturers’ decisions to obtain f. Other Issues To Be Considered
50,000 mile warranty or a 3-year/36,000 mile
warranty), making more warranty claims
field reports are discretionary and In addition to comments on the above,
information subject to disclosure to the agency. practices vary among manufacturers. we seek comments on the proposed
DaimlerChrysler, for example, lengthened its engine The disclosure of field report data approach. This includes whether the
warranty period to gain in the competitive market. would discourage manufacturers from proposed categories for certain EWR
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See, e.g., Jeff Green, DC Emphasizes Warranty,


Bloomberg, Sept. 6, 2002, available at http://
initiating field reports. This would lead data (i.e., those data covering non-light
www.theautochannel.com. Not only do warranties to fewer and less reliable field reports vehicle production, consumer
differ by manufacturer, they also differ based on the available to the agency in the future to complaints, warranty claims, field
targeted market (e.g. luxury v. non-luxury) and on identify potential safety defects reports, and common green tires) should
system components and 2003 Manufacturers’
Warranties, available at www.enterprise.com. Both
promptly. Field reports are particularly be held confidential by class
items are docketed in Docket No. NHTSA–2002– valuable in identifying areas of potential determinations based on Exemption 4.
12150, Item No. 65. concern to manufacturers. Some of these For example, we invite commenters to

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provide information relating to whether a vehicle owner that could result in an unwarranted invasion of personal privacy
the release of this information would unwarranted invasion of his or her within the meaning of 5 U.S.C. 552(b)(6).
provide competitors with valuable privacy. With respect to EWR This proposal would apply as a rule
information relating to the business of submissions, NHTSA had previously to only those VINs that are provided in
the reporting entity, such as marketing, issued a determination that the last six EWR submissions and would not apply
performance problems and/or costs, to (6) characters in the seventeen-character as a rule to the agency’s treatment of
the extent that the disclosure would VIN should be protected, as a class, VINs in other instances.
cause or be likely to cause the data from public disclosure under FOIA We seek comment on the
submitter substantial competitive harm. Exemption 6, 5 U.S.C. 552(b)(6). 69 FR appropriateness of our proposal, as well
We are also interested in whether the at 21416. When coupled with publicly- as variations on this proposal related to
disclosure of the information covered by available data bases, the disclosure of a the confidentiality of all or parts of
our proposed classes would complete VIN can lead to the discovery VINs.
significantly discourage manufacturers of personal information (e.g., name and
from continuing to obtain and manage address) about the owner of a vehicle IV. Exemption 3
this information as they do now. associated with a death or injury.20 The In its comments in the course of the
Commenters may also address first 11 characters of the VIN reveal the earlier EWR CBI rulemaking, and the
different approaches. We invite make, model, model year, and engine of memoranda it filed with the District
comments that address the practical the vehicle, but the last six identify the Court in the Public Citizen case, the
concerns of such potential approaches. specific vehicle. We are concerned that RMA asserted that Exemption 3 of the
For example, if NHTSA were to adopt release of VINs where there has been a FOIA covered all EWR submissions,
presumptive class determinations for death or an injury reported under the including requests for the
each of the EWR data categories, what EWR program would result in confidentiality of EWR information not
are the relative merits of each proposed communications and inquiries from within the scope of Appendix C to Part
class within the context of the large third parties that would invade personal 512 as promulgated in 2003 and
volume of information generated by privacy. amended in 2004 and individual
EWR requirements, and the manner in Since the public can still determine a requests for confidentiality. The District
which the agency can address the vehicle’s make and model using the first Court rejected the contention that
confidentiality of these materials in an 11 characters of the VIN, which would Exemption 3 applies to the EWR data,
efficient and consistent manner.19 be released, members of the public with concluding that the disclosure provision
Commenters should also, where affecting EWR data, 49 U.S.C.
an interest in motor vehicle safety can
appropriate, indicate and demonstrate 30166(m)(4)(C),22 did not qualify as an
still ascertain whether a particular type
how the restrictions imposed by Exemption 3 statute because the
of vehicle may be involved in a
Congress in 49 U.S.C. 30166(m)(4)(B) provision does not prescribe a formula
potential vehicle safety issue. As
would affect the agency’s ability to to enable the agency to determine
discussed above, however, the
continue collecting EWR data if they are precisely whether the disclosure of the
revelation of the complete VIN is
subject to routine disclosure. data would be helpful in carrying out
accompanied by the risk of an invasion
Supporting facts in favor or against each the recall notification and remedy
of privacy. On balance, the agency
class should be included as appropriate. provisions of the Safety Act. It also
tentatively believes that that interest in
B. EWR Class Determination Based on protecting the risk of invading noted that the provision did not refer to
FOIA Exemption 6 individuals’ privacy outweighs the particular matters that must be
public’s interest in this information and withheld. See Public Citizen, 444 F.
NHTSA receives VIN information Supp. 2d at 12.
under the EWR rule in reports on the agency has tentatively concluded
that this information merits withholding RMA filed a notice of appeal of the
incidents involving deaths and injuries. District Court’s Judgment. The
See e.g. 49 CFR 579.21(b)(2). NHTSA is under FOIA Exemption 6.21
contention that NHTSA is precluded by
proposing to create a class This new class determination would
statute from releasing the early warning
determination that would apply to the be set out in a new Appendix D, which
data is within the scope of this notice.
last six (6) characters of the unique would read as follows:
Should the Court of Appeals reverse the
seventeen (17) character vehicle Appendix D—Vehicle Identification Number District Court on this issue and decide
identification number (VIN) contained Information that Exemption 3 does apply to EWR
in EWR death and injury reports. This The Chief Counsel has determined that the data, the agency may proceed to issue a
proposal is grounded on Exemption 6 of disclosure of the last six (6) characters, when final rule exempting EWR data from
the FOIA, which protects information disclosed along with the first eleven (11) disclosure in a manner consistent with
that would result in a clearly characters, of vehicle identification numbers the Court of Appeal’s decision or
unwarranted invasion of privacy if reported in information on incidents terminate the EWR Appendix C portion
disclosed. See 5 U.S.C. 552(b)(6). See involving death or injury pursuant to the
early warning information requirements of 49
of this rulemaking as unnecessary.
also Center for Auto Safety v. NHTSA,
809 F. Supp. 148 (D.D.C. 1993). CFR Part 579 will constitute a clearly V. Other EWR Data
Factually, this proposed exemption is We are not proposing to include
20 NHTSA has previously documented that full
based on the risk that the disclosure of property damage claims and notices of
VINs can be used to ascertain personal information
a full VIN could enable an individual to on individual vehicle owners. See Docket No.
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discern personal information involving NHTSA–2002–12150, Item No. 64 (listing various 22 The provision, 49 U.S.C. § 30166(m)(4)(C),

publicly available Web sites by which VIN provides as follows:


19 ‘‘Binding’’ determinations would alleviate the information can be used to reveal personal Disclosure. None of the information collected
need for submitters to provide a formal written information). pursuant to the final rule promulgated under
request for confidentiality and supporting 21 See generally Horowitz v. Peace Corps, 428 paragraph (1) [i.e. early warning reporting rule]
justification, whereas ‘‘presumptive’’ F.3d 271, 278–79 (D.C. Cir. 2005) (discussing shall be disclosed pursuant to section 30167(b)
determinations would require submitters to provide balancing required under Exemption 6 and unless the Secretary determines the disclosure of
a written request and supporting justification indicating that ‘‘seemingly innocuous information’’ such information will assist in carrying out sections
pursuant to 49 CFR Part 512. can be subject to the Exemption’s protection). 30117(b) and 30118 through 30121.

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death, personal injury or property treatment, we often find that CD–ROMs manufacturers submit information in
damage as part of our class do not properly designate the proprietary or uncommon data bases.
determinations based on Exemption 4. information that the submitters claim to We have been unable to open and
These items involve a collection of be confidential. More particularly, review these items and accordingly have
information, many pieces of which are individual files submitted electronically denied the associated requests for
publicly available. In the particular (e.g., pdf format) on CD–ROMs often confidentiality.
circumstances of these data, we do not contain documents in which each page Finally, we would clarify that
believe that the disclosure of this claimed to be confidential is not labeled requests for confidential treatment for
collected information would likely as confidential. Also, while a page may information submitted to the agency
provide information that would be used contain some information that is not must provide the information claimed
competitively and result in substantial confidential (e.g., identical information as confidential in a physical medium
competitive harm. These kinds of claims is publicly available) and some such as a CD–ROM. There have been
tend to be more historical, rather than information that is within the claim for occasions where manufacturers have
predictive, when compared to the other confidentiality under section 512.8, the attempted to submit information
types of information required by the submitter does not enclose each item of claimed as confidential via e-mail. Not
EWR regulation, with any apparent information that is claimed to be only was this not allowed under the
trends arising over longer periods of confidential within brackets. Today’s existing regulations, but tracking
time. We consider it unlikely that proposal would require that the CD– requests for confidential treatment
information about claims of death, ROM be marked permanently as submitted in this manner is very
personal injury or property damage will confidential and that each page that difficult and far more prone to error
be valuable to competitors such as in contains confidential material be so than a physical submission. This affects
cross-company comparisons. We note marked. Also, the proposal would the agency’s ability to provide timely
also that manufacturers receive claims require that where only part of the responses to these requests and the
based on incidents occurring in the information is within the scope of the Chief Counsel’s office’s ability to
field, not as the result of proactive claim, that part of the information be transmit the information to the relevant
efforts to obtain data or customer separately enclosed within brackets. office within NHTSA. In addition, the
feedback. They are required under 49 Our proposed clarification seeks to Department of Transportation limits the
CFR Part 576 to retain this information minimize inadvertent disclosure of overall amount of e-mail information
and do not have the option to refuse to materials that are subject to a claim of that an individual may maintain, and
amass it. confidentiality and eliminate any this presents problems. It also creates
Therefore, other than within the ambiguity on the scope of the claim in storage issues. To ensure our ability to
context of the Exemption 3 discussion our review of these types of submitted properly track and handle this
above and except to the extent that the documents. information, our proposal would require
EWR submissions contain personal During our reviews of claims for that the information be placed on
information covered by Exemption 6, confidential treatment, we also find that appropriate physical media, such as
these data categories lie outside the files within CD–ROMs do not contain CDs, when requesting confidential
scope of this rulemaking. page numbers. Electronic submissions treatment.
sometimes contain large numbers of These changes would be included in
VI. Identifying Confidential
files and folders. Not infrequently, these a new § 512.6(c) which would replace
Information Located in Electronic Files
files contain numerous pages. When we § 512.6(b)(3). The proposed § 512.6(c)
We are also proposing to clarify deny a request for confidentiality for a would read as follows:
NHTSA’s Confidential Business particular page, we need to identify it
Information rule, 49 CFR 512.6, with particularity. Individual pages (c) Submissions in electronic format
regarding data claimed as confidential (1) Persons submitting information under
within individual electronic files that this Part may submit the information in
that are submitted in electronic form. lack page numbers ordinarily cannot be electronic format. Except for early warning
The current regulation states readily identified. In these instances, reporting data submitted to the agency under
requirements for paper submissions. See there are substantial implementation 49 CFR part 579, the information shall be
49 CFR 512.6(a), (b)(1) and (2); see also problems in identifying what page(s) are submitted in a physical medium such as a
49 CFR § 512.8. It then states that if within the scope of the agency’s grant of CD–ROM. The exterior of the medium (e.g.,
submitted in electronic format, a a request for confidentiality and what the disk itself) shall be permanently labeled
comparable method to of identifying the page(s) that are within the scope of the with the submitter’s name, the subject of the
information claimed to be confidential agency’s denial. To eliminate these information and the word
may be used. If submitted on CD–ROM ‘‘CONFIDENTIAL’’.
problems, we are proposing to add a
or other format, the item containing the (2) Pages and materials claimed to be
provision requiring the inclusion of a confidential must be designated as provided
information shall be labeled as sequential numeric or alpha-numeric in paragraphs (b)(1) and (b)(2) of this section.
containing confidential information. 49 system that would identify each page Files and materials that cannot be marked
CFR 512.6(c). contained in an electronic submission. internally, such as video clips or executable
Some CD–ROMs that are submitted to This may be added to the pages before files, shall be renamed prior to submission so
us are not labeled or indelibly marked they are scanned or in the course of the the characters ‘‘Conf’’ or the word
as confidential on the disk itself. We preparation of the CD–ROM. We note ‘‘Confidential’’ appear in the file name.
propose to require that the medium that the courts require page numbers in (3) Each page within an electronic file that
(e.g., the disk itself and not the plastic appendices. See e.g., Federal Rule of is submitted for confidential treatment must
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enclosure for the disk) be permanently be individually numbered in the order


Appellate Procedure 30.
labeled with the submitter’s name, the presented with a sequential numeric or
The proposal also provides that
alpha-numeric system that separately
subject of the information and the word electronic media may be submitted only identifies each page contained in that
‘‘Confidential.’’ This is already the in commonly available and used submission.
routine practice with some formats. This would include formats (4) Electronic media may be submitted
manufacturers. In addition, during our such as pdf, Word documents and Excel only in commonly available and used
reviews of claims for confidential spreadsheets. From time-to-time, formats.

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VII. Request for Comments addition, you should submit two copies published on April 11, 2000 (65 FR
from which you have deleted the 19477) or you may visit http://
How Do I Prepare and Submit
claimed confidential business dms.dot.gov.
Comments?
information, to Docket Management at
Your comments must be written and IX. Regulatory Analyses and Notices
the address given at the beginning of
in English. To ensure that your this document under ADDRESSES. A. Executive Order 12866 and DOT
comments are correctly filed in the Regulatory Policies and Procedures
Docket, please include the docket Will the Agency Consider Late
number of this document in your Comments? Executive Order 12866, ‘‘Regulatory
comments. We will consider all comments that Planning and Review’’ (58 FR 51735
Your comments must not be more Docket Management receives before the (Oct. 4, 1993)), provides for making
than 15 pages long (49 CFR 553.21). We close of business on the comment determinations whether a regulatory
established this limit to encourage you closing date indicated at the beginning action is ‘‘significant’’ and therefore
to write your primary comments in a of this notice under DATES. In subject to review by the Office of
concise fashion. However, you may accordance with our policies, to the Management and Budget (OMB) and to
attach necessary additional documents extent possible, we will also consider the requirements of the Executive Order.
to your comments. There is no limit on comments that Docket Management The Order defines a ‘‘significant
the length of the attachments. receives after the specified comment regulatory action’’ as one that is likely
Please submit two copies of your closing date. If Docket Management to result in a rule that may:
comments, including the attachments, receives a comment too late for us to (1) Have an annual effect on the economy
to Docket Management at the beginning consider in developing the proposed of $100 million or more or adversely affect
of this document, under ADDRESSES. rule, we will consider that comment as in a material way the economy, a sector of
You may also submit your comments an informal suggestion for future the economy, productivity, competition, jobs,
electronically to the docket following the environment, public health or safety, or
rulemaking action. State, local or tribal governments or
the steps outlined under ADDRESSES.
How Can I Read the Comments communities;
How Can I Be Sure That My Comments Submitted by Other People? (2) Create a serious inconsistency or
Were Received? otherwise interfere with an action taken or
You may read the comments received planned by another agency;
If you wish Docket Management to by Docket Management at the address (3) Materially alter the budgetary impact of
notify you upon its receipt of your and times given near the beginning of entitlements, grants, user fees, or loan
comments, enclose a self-addressed, this document under ADDRESSES. programs or the rights and obligations of
stamped postcard in the envelope You may also see the comments on recipients thereof; or
containing your comments. Upon the Internet. To read the comments on (4) Raise novel legal or policy issues
receiving your comments, Docket the Internet, take the following steps: arising out of legal mandates, the President’s
Management will return the postcard by priorities, or the principles set forth in the
(1) Go to the Docket Management System Executive Order.
mail. (DMS) Web page of the Department of
Transportation (http://dms.dot.gov/). NHTSA has considered the impact of
How Do I Submit Confidential Business
(2) On that page, click on ‘‘search.’’ this rulemaking action under Executive
Information? (3) On the next page (http://dms.dot.gov/ Order 12866 and the Department of
If you wish to submit any information search/), type in the four-digit docket number Transportation’s regulatory policies and
under a claim of confidentiality, you shown at the heading of this document. procedures (44 FR 11034 (Feb. 26,
should submit the following to the Chief Example: if the docket number were
1979)). This rulemaking action is not
Counsel (NCC–110) at the address given ‘‘NHTSA–2001–1234,’’ you would type
‘‘1234.’’ significant under E.O. 12866,
at the beginning of this document under (4) After typing the docket number, click ‘‘Regulatory Planning and Review’’ or
the heading FOR FURTHER INFORMATION on ‘‘search.’’ the Department’s regulatory policies and
CONTACT: (1) A complete copy of the (5) The next page contains docket summary procedures. There are no new
submission; (2) a redacted copy of the information for the docket you selected. Click significant burdens on information
submission with the confidential on the comments you wish to see. submitters or related costs that would
information removed; and (3) either a You may download the comments. require the development of a full cost/
second complete copy or those portions The comments are imaged documents, benefit evaluation. As indicated in the
of the submission containing the in either TIFF or PDF format. Please preamble, this document proposes
material for which confidential note that even after the comment closing primarily to remedy a technical
treatment is claimed and any additional date, we will continue to file relevant deficiency identified by a Federal court
information that you deem important to information in the Docket as it becomes and does not raise any new legal or
the Chief Counsel’s consideration of available. Further, some people may policy issues. This proposed rule does
your confidentiality claim. A request for submit late comments. Accordingly, we not present novel policy issues. Instead,
confidential treatment that complies recommend that you periodically search it involves issues that have been subject
with 49 CFR part 512 must accompany the Docket for new material. to past notice and comment and have
the complete submission provided to also been previously addressed in prior
the Chief Counsel. For further VIII. Privacy Act Statement court proceedings.
information, submitters who plan to Anyone is able to search the
request confidential treatment for any electronic form of all comments B. Regulatory Flexibility Act
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portion of their submissions are advised received into any of our dockets by the We have considered the effects of this
to review 49 CFR part 512, particularly name of the individual submitting the rulemaking action under the Regulatory
those sections relating to document comment (or signing the comment, if Flexibility Act (5 U.S.C. 601 et seq.)
submission requirements. Failure to submitted on behalf of an association, This proposed rule would not have a
adhere to the requirements of part 512 business, labor union, etc.). You may significant economic impact on a
may result in the release of confidential review DOT’s complete Privacy Act substantial number of small entities.
information to the public docket. In Statement in the Federal Register This proposed rule would impose no

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63748 Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules

additional reporting obligations on February 7, 1996) requires that document to find this action in the
small entities beyond those otherwise Executive agencies make every Unified Agenda.
required by the Safety Act and the early reasonable effort to ensure that the
List of Subjects in 49 CFR Part 512
warning reporting regulation. This regulation: (1) Clearly specifies the
proposed rule addresses the agency’s preemptive effect, if any; (2) clearly Administrative procedure and
treatment of early warning reporting specifies any effect on existing Federal practice, Confidential business
data and would clarify procedures for law or regulation; (3) provides a clear information, Freedom of information,
all submitters, including small entities, legal standard for affected conduct Motor vehicle safety, Reporting and
with regard to confidentiality. The rule while promoting simplification and record keeping requirements.
would protect certain categories of early burden reduction; (4) specifies the In consideration of the foregoing, the
warning reporting information from retroactive effect, if any; (5) adequately National Highway Traffic Safety
disclosure. defines key terms; and (6) addresses Administration proposes to amend 49
In addition, small entities, which other important issues affecting clarity CFR Chapter V, Code of Federal
generally submit items in hard copy and general draftsmanship under any Regulations, by amending part 512 as
format, are expected to and may guidelines issued by the Attorney set forth below.
continue to do so. Those wishing to General. This document is consistent
submit information in electronic format with that requirement. PART 512—CONFIDENTIAL BUSINESS
would be able to do so using the NHTSA notes that there is no INFORMATION
procedures that we are clarifying in this requirement that individuals submit a
1. The authority citation for part 512
proposal. Therefore, a regulatory petition for reconsideration or pursue
continues to read as follows:
flexibility analysis is not required for other administrative proceedings before
this proposed action. they may file suit in court. Authority: 49 U.S.C. 322; 5 U.S.C. 552; 49
U.S.C. 30166, 49 U.S.C. 30167; 49 U.S.C.
C. National Environmental Policy Act G. Paperwork Reduction Act 32307; 49 U.S.C. 32505; 49 U.S.C. 32708; 49
The existing requirements of Part 512 U.S.C. 32910; 49 U.S.C. 33116; delegation of
NHTSA has analyzed this proposed
are considered to be information authority at 49 CFR 1.50.
rule for the purposes of the National
Environmental Policy Act and collection requirements as that term is 2. Section 512.6 is amended by
determined that it will not have any defined by the Office of Budget and removing paragraph (b)(3) and adding a
significant impact on the quality of the Management (OMB) in 5 CFR part 1320. new paragraph (c) to read as follows:
human environment. Accordingly, the existing part 512
§ 512.6 How should I prepare documents
regulation was submitted to and
D. Executive Order 13132 (Federalism) when submitting a claim for confidentiality?
approved by OMB pursuant to the
NHTSA has examined today’s Paperwork Reduction Act (44 U.S.C. * * * * *
proposed rule pursuant to Executive 3501 et seq.). At the time that we (c) Submissions in electronic format.
Order 13132 (64 FR 43255, August 10, submitted the prior requirements of part (1) Persons submitting information
1999). This action would not have 512, these requirements were approved under this Part may submit the
‘‘federalism implications’’ because it through January 31, 2008. This proposal information in electronic format. Except
would not have ‘‘substantial direct does not revise the existing currently for early warning reporting data
effects on States, on the relationship approved information collection under submitted to the agency under 49 CFR
between the national government and part 512. Instead, the proposal contains part 579, the information shall be
the States, or on the distribution of the same requirements as before and submitted in a physical medium such as
power and responsibilities among the only clarifies procedures as to a CD–ROM. The exterior of the medium
various levels of government,’’ as electronically-submitted items to the (e.g., the disk itself) shall be
specified in section 1 of the Executive agency for which confidentiality is permanently labeled with the
Order. sought. It does not require electronic submitter’s name, the subject of the
submissions. information and the word
E. Unfunded Mandate Reform Act ‘‘Confidential’’.
The Unfunded Mandate Reform Act of H. Executive Order 13045 (2) Pages and materials claimed to be
1995 requires agencies to prepare a Executive Order 13045 (62 FR 19885, confidential must be designated as
written assessment of the costs, benefits April 23, 1997) applies to any rule that: provided in paragraphs (b)(1) and (b)(2)
and other effects of proposed or final (1) Is determined to be ‘‘economically of this section. Files and materials that
rules that include a Federal mandate significant’’ as defined under E.O. cannot be marked internally, such as
likely to result in the expenditure by 12866, and (2) concerns an video clips or executable files, shall be
State, local or tribal governments, in the environmental, health or safety risk that renamed prior to submission so the
aggregate, or by the private sector, of NHTSA has reason to believe may have characters ‘‘Conf’’ or the word
more than $100 million annually a disproportionate effect on children. ‘‘Confidential’’ appear in the file name.
(adjusted for inflation with base year of This proposed action does not meet (3) Each page within an electronic file
1995). This proposal would not result in either of these criteria. that is submitted for confidential
the expenditure by State, local or tribal treatment must be individually
I. Regulation Identifier Number (RIN) numbered in the order presented with a
governments, in the aggregate, or by the
private sector, of more than $100 The Department of Transportation sequential numeric or alpha-numeric
million annually. assigns a regulation identifier number system that separately identifies each
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(RIN) to each regulatory action listed in page contained in that submission.


F. Executive Order 12988 (Civil Justice the Unified Agenda of Federal (4) Electronic media may be
Reform) Regulations. The Regulatory Information submitted only in commonly available
With respect to the review of the Service Center publishes the Unified and used formats.
promulgation of a new regulation, Agenda in April and October of each * * * * *
section 3(b) of Executive Order 12988, year. You may use the RIN contained in 3. Appendix C to part 512 is revised
‘‘Civil Justice Reform’’ (61 FR 4729, the heading at the beginning of this to read as follows:

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Federal Register / Vol. 71, No. 210 / Tuesday, October 31, 2006 / Proposed Rules 63749

Appendix C to Part 512—Early SUMMARY: The New England and Mid- modified and/or supplemented, to
Warning Reporting Class Atlantic Fishery Management Councils establish standards of precision for
Determinations (Councils) will convene public hearings bycatch estimation for all Northeast
and seek public comment on a draft Region fisheries and, thereby, to
(a) The Chief Counsel has determined that amendment to all the fishery document the SBRM established for all
the following information required to be management plans (FMPs) under their fisheries managed through the FMPs of
submitted to the agency under 49 CFR part the Northeast Region. The scope of the
579, subpart C, will cause substantial
purview. The omnibus amendment
competitive harm and will impair the would establish standardized bycatch omnibus amendment is limited to those
government’s ability to obtain this reporting methodology (SBRM) for each fisheries prosecuted in the Federal
information in the future if released: FMP, as required under the Magnuson- waters of the Northeast Region and
(1) Reports and data relating to warranty Stevens Fishery Conservation and managed through an FMP developed by
claim information; Management Act (Magnuson-Stevens either the Mid-Atlantic or New England
(2) Reports and data relating to field Act). Council.
reports, including dealer reports, product Alternatives under consideration in
evaluation reports, and hard copies of field DATES: The public hearings will be on the omnibus SBRM amendment address
reports; and November 14, 2006, in Gloucester, MA, bycatch reporting and monitoring
(3) Reports and data relating to consumer and December 12, 2006, in New York
complaints.
mechanisms, analytical techniques and
City, NY. Written comments must be allocation of at-sea fishery observers,
(b) In addition, the Chief Counsel has received at the appropriate address,
determined that the following information establishment of a target level for
e-mail address, or fax number (see precision of bycatch estimates, and
required to be submitted to the agency under
49 CFR 579, subpart C, will cause substantial ADDRESSES) by 5 p.m., local time, on requirements for reviewing and
competitive harm if released: December 29, 2006. reporting on the efficacy of the SBRM.
(1) Reports of production numbers for ADDRESSES: NMFS and the Councils NMFS and the Councils will consider
child restraint systems, tires, and vehicles will accept comments at two public all comments received on the draft
other than light vehicles, as defined in 49 hearings. For specific locations, see
CFR § 579.4(c); and
SBRM amendment and the alternatives
SUPPLEMENTARY INFORMATION. You may for incorporation into the final
(2) Lists of common green tire identifiers.
submit comments on the draft document until the end of the comment
4. Appendix D to part 512 is amendment by any of the following period on December 29, 2006. The
redesignated as Appendix E to part 512 methods: public will have several additional
and a new Appendix D to part 512 is • E-mail: SBRMcomment@noaa.gov opportunities to comment on the SBRM.
added to read as follows: • Through the Federal eRulemaking The final amendment will be considered
Appendix D to Part 512—Vehicle portal: http://www.regulations.gov. for approval by the Councils at public
Identification Number Information Reference I.D. 102006A. meetings in February of 2007. Once
• Mail: Patricia A. Kurkul, Regional submitted to NMFS, the final SBRM
The Chief Counsel has determined that the Administrator, NOAA Fisheries Service,
disclosure of the last six (6) characters, when
Amendment will be made available for
Northeast Regional Office, 1 Blackburn public review and comment, and
disclosed along with the first eleven (11)
characters, of vehicle identification numbers Drive, Gloucester MA 01930. Mark the regulations will be proposed for review
reported in information on incidents outside of the envelope: ‘‘Comments on and comment in March 2007.
involving death or injury pursuant to the SBRM Amendment.’’
early warning information requirements of 49 • Fax: (978) 281–9135, Attention: Meeting Dates, Times, and Locations
CFR part 579 will constitute a clearly Patricia A. Kurkul. The public hearings have been
unwarranted invasion of personal privacy Copies of the draft SBRM amendment scheduled to coincide with the date and
within the meaning of 5 U.S.C. 552(b)(6). and the public hearing document may location of New England and Mid-
Issued on: October 26, 2006. be obtained by contacting the NMFS Atlantic Fishery Management Council
Anthony M. Cooke, Northeast Regional Office at the above meetings.
Chief Counsel. address. The documents are also Tuesday, November 14, 2006, at 5:30
[FR Doc. E6–18285 Filed 10–30–06; 8:45 am] available via the internet at: http:// p.m. – Tavern on the Harbor, 30
www.nero.noaa.gov/nero/regs/ Western Ave., Gloucester, MA 01930,
BILLING CODE 4910–59–P
com.html. telephone: (978) 283–4200.
Tuesday, December 12, 2006, at 7
FOR FURTHER INFORMATION CONTACT:
p.m. – Skyline Hotel, 725 10th Ave,
DEPARTMENT OF COMMERCE Michael Pentony, Senior Fishery Policy New York, NY 10019, telephone: (212)
Analyst, (978) 281–6283. 586–3400.
National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: Section
Administration 303(a)(11) of the Magnuson-Stevens Act Special Accommodations
requires each FMP to include provisions These hearings are physically
50 CFR Part 648 establishing ‘‘a standardized reporting accessible to people with disabilities.
[I.D. 102006A] methodology to assess the amount and Requests for sign language
type of bycatch occurring in the interpretation or other auxiliary aids at
New England and Mid-Atlantic Fishery fishery.’’ The Councils and NMFS are the Gloucester, MA, meeting should be
Management Councils; Public considering an omnibus amendment to directed to Paul J. Howard, Executive
Hearings establish an SBRM or modify existing Director, New England Fishery
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AGENCY: National Marine Fisheries SBRMs under every Northeast Region Management Council, 50 Water Street,
Service (NMFS), National Oceanic and FMP. The purpose of the amendment is Mill 2, Newburyport, MA 01950.
Atmospheric Administration (NOAA), to explain the methods and processes by Requests for such services at the New
Commerce. which bycatch is currently monitored York, NY, meeting should be directed to
and assessed for Northeast Region M. Jan Saunders, (302) 674 2331
ACTION: Notice of public hearings;
fisheries, to determine whether these extension 18. Requests for accessibility
request for comments.
methods and processes need to be accommodations must be received at

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