Proposed Rules. Notice of proposed rulemaking
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/register/2007/08/06/07-3825A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 3510-22-S 72 150 Monday, August 6, 2007 Proposed Rules DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 [Docket Number 2007-0043] Privacy Act of 1974: Implementation of Exemptions; Automated Targeting System AGENCY: Privacy Office, Office of the Secretary, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Homeland Security is amending its regulations to exempt certain records from particular provisions of the Privacy Act. Specifically, the Department proposes to exempt certain records of the Automated Targeting System from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.
This notice is a republication of the Treasury Department exemption regulation (title 31, Code of Federal Regulations, part 1) which previously covered the Automated Targeting System as part of the Treasury Enforcement Communications System. DATES: Written comments must be submitted on or before September 5, 2007. ADDRESSES: You may submit comments, identified by DOCKET NUMBER DHS-2007-0043 by one of the following methods: • *Federal e-Rulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 1-866-466-5370. • *Mail:* Hugo Teufel III, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: For general questions please contact: Laurence E. Castelli (202-572-8790), Chief, Privacy Act Policy and Procedures Branch, Bureau of Customs and Border Protection, Office of International Trade, Mint Annex, 1300 Pennsylvania Ave., NW., Washington, DC 20229. For privacy issues please contact: Hugo Teufel III (703-235-0780), Chief Privacy Officer, Privacy Office, U.S. Department of Homeland Security, Washington, DC 20528. SUPPLEMENTARY INFORMATION:
Background The Department of Homeland Security (DHS), elsewhere in this edition of the **Federal Register** , published a Privacy Act system of records notice describing records in the Automated Targeting System (ATS). ATS performs screening of both inbound and outbound cargo, travelers, and conveyances. As part of this screening function and to facilitate DHS's border enforcement mission, ATS compares information received with CBP's law enforcement databases, the Federal Bureau of Investigation Terrorist Screening Center's the Terrorist Screening Database (TSDB), information on outstanding wants or warrants, information from other government agencies regarding high-risk parties, and risk-based rules developed by analysts using law enforcement data, intelligence, and past case experience.
The modules also facilitate analysis of the screening results of these comparisons. ATS originally was designed as a rules-based program to identify such cargo; it did not apply to travelers. Today, ATS includes the following separate components: ATS-N, for screening inbound or imported cargo; ATS-AT, for outbound or exported cargo; ATS-L, for screening private passenger vehicles crossing at land border ports of entry using license plate data; ATS-I, for cooperating with international customs partners in shared cargo screening and supply chain security;
ATS-TAP, for assisting tactical units in identifying anomalous trade activity and performing trend analysis; and ATS-P, for screening travelers and conveyances entering the United States in the air, sea, and rail environments. ATS-Passenger (ATS-P), one of six modules contained within ATS, maintains Passenger Name Record
(PNR)data (data provided to airlines and travel agents by or on behalf of air passengers seeking to book travel) that has been collected by CBP as part of its border enforcement mission. ATS-P's screening relies upon information from the following databases: Treasury Enforcement Communications System (TECS), Advanced Passenger Information System (APIS), Non Immigrant Information System (NIIS), Suspect and Violator Indices (SAVI), and the Visa databases (maintained by the Department of State) with the PNR information that it maintains. With respect to ATS-P module exempt records are the risk assessment analyses and business confidential information received in the PNR from the air and vessel carriers. No exemption shall be asserted regarding PNR data about the requester, obtained from either the requester or by a booking agent, brokers, or another person on the requester's behalf. This information, upon request, may be provided to the requester in the form in which it was collected from the respective carrier, but may not include certain business confidential information of the air carrier that is also contained in the record, such as use and application of frequent flier miles, internal annotations to the air fare, etc. For other ATS modules the only information maintained in ATS is the risk assessment analyses and a pointer to the data from the source system of records. This system, however, may contain records or information recompiled from or created from information contained in other systems of records, which are exempt from certain provisions of the Privacy Act. For these records or information only, in accordance with 5 U.S.C. 552a (j)(2), and (k)(2), DHS will claims the following exemptions for these records or information from subsections (c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), and
(g)of the Privacy Act of 1974, as amended, as necessary and appropriate to protect such information. Moreover, DHS will add these exemptions to Appendix C to 6 CFR part 5, DHS Systems of Records Exempt from the Privacy Act. Such exempt records or information are law enforcement or national security investigation records, law enforcement activity and encounter records, or terrorist screening records. DHS needs these exemptions in order to protect information relating to law enforcement investigations from disclosure to subjects of investigations and others who could interfere with investigatory and law enforcement activities. Specifically, the exemptions are required to: preclude subjects of investigations from frustrating the investigative process; avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure DHS' and other federal agencies' ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard sensitive information. Additionally, DHS needs these exemptions in order to protect information relating to law enforcement investigations from disclosure to subjects of such investigations and others who could interfere with investigatory activities. Specifically, the exemptions are required to: withhold information to the extent it identifies witnesses promised confidentiality as a condition of providing information during the course of the law enforcement investigation; prevent subjects of such investigations from frustrating the investigative process; avoid disclosure of investigative techniques; protect the privacy of third parties; ensure DHS's and other federal agencies' ability to obtain information from third parties and other sources; and safeguard sensitive information. The exemptions proposed here are standard law enforcement exemptions exercised by a large number of federal law enforcement agencies. Nonetheless, DHS will examine each separate request on a case-by-case basis, and, after conferring with the appropriate component or agency, may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement purposes of the systems from which the information is recompiled or in which it is contained. Regulatory Requirements A. Regulatory Impact Analyses Changes to Federal regulations must undergo several analyses. In conducting these analyses, DHS has determined: 1. Executive Order 12866 Assessment This rule is not a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review” (as amended). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB). Nevertheless, DHS has reviewed this rulemaking, and concluded that there will not be any significant economic impact. 2. Regulatory Flexibility Act Assessment Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), DHS certifies that this rule will not have a significant impact on a substantial number of small entities. The rule would impose no duties or obligations on small entities. Further, the exemptions to the Privacy Act apply to individuals, and individuals are not covered entities under the RFA. 3. International Trade Impact Assessment This rulemaking will not constitute a barrier to international trade. The exemptions relate to criminal investigations and agency documentation and, therefore, do not create any new costs or barriers to trade. 4. Unfunded Mandates Assessment Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub. L. 104-4, 109 Stat. 48), requires Federal agencies to assess the effects of certain regulatory actions on State, local, and tribal governments, and the private sector. This rulemaking will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector. B. Paperwork Reduction Act The Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3501 *et seq.* ) requires that DHS consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget
(OMB)for each collection of information it conducts, sponsors, or requires through regulations. DHS has determined that there are no current or new information collection requirements associated with this rule. C. Executive Order 13132, Federalism This action will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore will not have federalism implications. D. Environmental Analysis DHS has reviewed this action for purposes of the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment. E. Energy Impact The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act
(EPCA)Public Law 94-163, as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory action under the provisions of the EPCA. List of Subjects in 6 CFR Part 5 Freedom of information, Privacy, Sensitive information. For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows: PART 5—DISCLOSURE OF RECORDS AND INFORMATION 1. The authority citation for part 5 continues to read as follows: Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 2. At the end of Appendix C to part 5, add the following new paragraph 5: Appendix C to Part 5—DHS Systems of Records Exempt From the Privacy Act 5. DHS/CBP-006 , Automated Targeting System. Certain records or information in the following system of records are exempt from 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G) through (I), (e)(5), and (8); (f), and (g). With respect to the ATS-P module, exempt records are the risk assessment analyses and business confidential information received in the PNR from the air and vessel carriers. No exemption shall be asserted regarding PNR data about the requester, obtained from either the requester or by a booking agent, brokers, or another person on the requester's behalf. This information, upon request, may be provided to the requester in the form in which it was collected from the respective carrier, but may not include certain business confidential information of the air carrier that is also contained in the record, such as use and application of frequent flier miles, internal annotations to the air fare, etc. For other ATS modules the only information maintained in ATS is the risk assessment analyses and a pointer to the data from the source system of records. These exemptions also apply to the extent that information in this system of records is recompiled or is created from information contained in other systems of records subject to such exemptions pursuant to 5 U.S.C. 552a(j)(2), and (k)(2). After conferring with the appropriate component or agency, DHS may waive applicable exemptions in appropriate circumstances and where it would not appear to interfere with or adversely affect the law enforcement purposes of the systems from which the information is recompiled or in which it is contained. Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:
(a)From subsection (c)(3) (Accounting for Disclosure) because making available to a record subject the accounting of disclosures from records concerning him or her would specifically reveal any investigative interest in the individual. Revealing this information could reasonably be expected to compromise ongoing efforts to investigate a known or suspected terrorist by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation, e.g., destroy evidence, intimidate potential witnesses, or flee the area to avoid or impede the investigation.
(b)From subsection (c)(4) (Accounting for Disclosure, notice of dispute) because certain records in this system are exempt from the access and amendment provisions of subsection (d), this requirement to inform any person or other agency about any correction or notation of dispute that the agency made with regard to those records, should not apply.
(c)From subsections (d)(1), (2), (3), and
(4)(Access to Records) because these provisions concern individual access to and amendment of certain records contained in this system, including law enforcement, counterterrorism, and investigatory records. Compliance with these provisions could alert the subject of an investigation to the fact and nature of the investigation, and/or the investigative interest of intelligence or law enforcement agencies; compromise sensitive information related to law enforcement, including matters bearing on national security; interfere with the overall law enforcement process by leading to the destruction of evidence, improper influencing of witnesses, fabrication of testimony, and/or flight of the subject; could identify a confidential source; reveal a sensitive investigative or intelligence technique; or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Amendment of these records would interfere with ongoing counterterrorism or law enforcement investigations and analysis activities and impose an impossible administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.
(d)From subsection (e)(1) (Relevancy and Necessity of Information) because it is not always possible for DHS or other agencies to know in advance what information is relevant and necessary for it to complete screening of cargo, conveyances, and passengers. Information relating to known or suspected terrorists is not always collected in a manner that permits immediate verification or determination of relevancy to a DHS purpose. For example, during the early stages of an investigation, it may not be possible to determine the immediate relevancy of information that is collected—only upon later evaluation or association with further information, obtained subsequently, may it be possible to establish particular relevance to a law enforcement program. Lastly, this exemption is required because DHS and other agencies may not always know what information about an encounter with a known or suspected terrorist will be relevant to law enforcement for the purpose of conducting an operational response.
(e)From subsection (e)(2) (Collection of Information from Individuals) because application of this provision could present a serious impediment to counterterrorism or law enforcement efforts in that it would put the subject of an investigation, study or analysis on notice of that fact, thereby permitting the subject to engage in conduct designed to frustrate or impede that activity. The nature of counterterrorism, and law enforcement investigations is such that vital information about an individual frequently can be obtained only from other persons who are familiar with such individual and his/her activities. In such investigations it is not feasible to rely solely upon information furnished by the individual concerning his own activities.
(f)From subsection (e)(3) (Notice to Subjects), to the extent that this subsection is interpreted to require DHS to provide notice to an individual if DHS or another agency receives or collects information about that individual during an investigation or from a third party. Should the subsection be so interpreted, exemption from this provision is necessary to avoid impeding counterterrorism or law enforcement efforts by putting the subject of an investigation, study or analysis on notice of that fact, thereby permitting the subject to engage in conduct intended to frustrate or impede that activity.
(g)From subsections (e)(4)(G),
(H)and
(I)(Agency Requirements) because portions of this system are exempt from the access and amendment provisions of subsection (d).
(h)From subsection (e)(5) (Collection of Information) because many of the records in this system coming from other system of records are derived from other domestic and foreign agency record systems and therefore it is not possible for DHS to vouch for their compliance with this provision; however, the DHS has implemented internal quality assurance procedures to ensure that data used in its screening processes is as complete, accurate, and current as possible. In addition, in the collection of information for law enforcement and counterterrorism purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significance as further investigation brings new details to light. The restrictions imposed by (e)(5) would limit the ability of those agencies' trained investigators and intelligence analysts to exercise their judgment in conducting investigations and impede the development of intelligence necessary for effective law enforcement and counterterrorism efforts.
(i)From subsection (e)(8) (Notice on Individuals) because to require individual notice of disclosure of information due to compulsory legal process would pose an impossible administrative burden on DHS and other agencies and could alert the subjects of counterterrorism or law enforcement investigations to the fact of those investigations when not previously known.
(j)From subsection
(f)(Agency Rules) because portions of this system are exempt from the access and amendment provisions of subsection (d). Access to, and amendment of, system records that are not exempt or for which exemption is waived may be obtained under procedures described in the related SORN or Subpart B of this Part.
(k)From subsection
(g)(Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act. Dated: July 31, 2007 Hugo Teufel III, Chief Privacy Officer. [FR Doc. E7-15198 Filed 8-3-07; 8:45 am] BILLING CODE 4410-10-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 2 RIN 3150-AI08 Interlocutory Review of Rulings on Requests by Potential Parties for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information; Reopening of Public Comment Period and Notice of Availability of Proposed Procedures for Comment AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule: Reopening of public comment period and notice of availability of proposed procedures for comment. SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is reopening the public comment period for an additional 30 days on a proposed rule published on June 11, 2007. The NRC is also making available for comment proposed procedures that would allow potential parties to NRC adjudications, as well as their representatives, to gain access to Sensitive Unclassified Non-Safeguards Information (SUNSI) or Safeguards Information (SGI). DATES: The comment period on the proposed rule expires on August 10, 2007. The comment period on the proposed procedures that would allow potential parties to NRC adjudications, as well as their representatives, to gain access to SUNSI or SGI expires on September 5, 2007. Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date. ADDRESSES: You may submit comments by any one of the following methods. If you are commenting on the proposed rule, please include the following number RIN 3150-AI08 in the subject line of your comments. Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. E-mail comments to: *SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301-415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov.* Address questions about our rulemaking Web site to Carol Gallagher 301-415-5905; e-mail *cag@nrc.gov.* Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 301-415-1966). Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101. Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. If you are commenting on the proposed procedures please include the following phrase “proposed SUNSI/SGI access procedures” in the subject line of your comments. The proposed procedures can be viewed and downloaded electronically via the NRC's public Web site at *http://ruleforum.llnl.gov/cgi-bin/rulelist?type=ipcr.* The proposed procedures also may be viewed electronically on the public computers located at the NRC's PDR, O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. Mail comments to: U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attn: Michael T. Lesar, Chief, Rulemaking, Directives, and Editing Branch, Office of Administration. E-mail comments to: *nrcrep@nrc.gov.* Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. Fax comments to: 301-415-5144. Comments submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov.* The ADAMS accession number for the procedures is ML071910149. FOR FURTHER INFORMATION CONTACT: Patrick Moulding, Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-2549, e-mail *pam3@nrc.gov.* SUPPLEMENTARY INFORMATION: On June 11, 2007 (72 FR 32018), the NRC published for public comment a proposed rule that would provide for expedited review by the Commission on orders on requests by potential parties for access to certain SUNSI and SGI. A 30-day comment period was provided for the proposed rule. The original comment period for the proposed rule expired on July 11, 2007. The NRC has reopened the comment period, which now expires on August 10, 2007. Commission regulations in 10 CFR part 2, “Rules of Practice for Domestic Licensing Proceedings and Issuance of Orders” govern the conduct of NRC adjudicatory proceedings. Potential parties who have requested or who may request a hearing or petition to intervene in a hearing under 10 CFR part 2 may need access to SUNSI (including, but not limited to, proprietary, confidential commercial, and security-related information) or SGI as defined in 10 CFR 73.2 to meet Commission requirements for hearing requests or for intervention. The Commission is seeking comment on proposed procedures to allow potential parties to submit information requests and enter into protective agreements prior to becoming a party to a proceeding so that those who demonstrate a legitimate need for SUNSI or SGI can receive relevant documents to prepare a valid contention. The proposed procedures reflect the longstanding practice of staff access determinations in the first instance, subject to review by a presiding officer if contested. The proposed procedures also describe how the public will be informed of this process. The proposed procedures address:
(1)When and where to submit requests for access to SUNSI and SGI that is possessed by the NRC; 1 1 The proposed procedures do not address information possessed solely by a licensee or applicant.
(2)Who will assess initially whether the proposed recipient has shown a need for SUNSI (or need to know for SGI) and a likelihood of establishing standing;
(3)Who will decide initially whether the proposed recipient is qualified (i.e., trustworthy and reliable) to receive SGI;
(4)Use of nondisclosure affidavits/agreements and protective orders; and
(5)Time periods for making standing, need, and access determinations, producing documents, submitting contentions, and seeking review of adverse determinations. These proposed procedures also include a “pre-clearance” process that would permit a potential party who may seek access to SGI to initiate the necessary background check in advance of a notice of opportunity for hearing. Dated at Rockville, Maryland, this 30th day of July 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E7-15189 Filed 8-3-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF THE TREASURY Office of Thrift Supervision 12 CFR Part 535 [Docket ID OTS-2007-0015] RIN 1550-AC17 Unfair or Deceptive Acts or Practices AGENCY: Office of Thrift Supervision, Treasury (OTS). ACTION: Advance notice of proposed rulemaking (ANPR). SUMMARY: OTS is reviewing its regulations relating to unfair or deceptive acts or practices to determine whether and, if so, to what extent, additional regulation is needed to ensure customers of OTS-regulated entities are treated fairly. This ANPR seeks input and information on issues OTS is considering as part of this review. DATES: Comments must be submitted by November 5, 2007. ADDRESSES: You may submit comments, identified by OTS-2007-0015, by any of the following methods: • *Federal eRulemaking Portal:* Go to *http:www.regulations.gov,* select “Office of Thrift Supervision” from the agency drop-down menu, then click submit. Select Docket ID “OTS-2007-0015” to submit or view public comments and to view supporting and related materials for this advance notice of proposed rulemaking. The “User Tips” link at the top of the page provides information on using Regulations.gov, including instructions for submitting or viewing public comments, viewing other supporting and related materials, and viewing the docket after the close of the comment period. • *Mail:* Regulation Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, Attention: OTS-2007-0015. • *Hand Delivery/Courier:* Guard's Desk, East Lobby Entrance, 1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: Regulation Comments, Chief Counsel's Office, Attention: OTS-2007-0015. • *Instructions:* All submissions received must include the agency name and docket number for this rulemaking. All comments received will be entered into the docket and posted on Regulations.gov without change, including any personal information provided. Comments, including attachments and other supporting materials received are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. • *Viewing Comments Electronically:* Go to *http://www.regulations.gov,* select “Office of Thrift Supervision” from the agency drop-down menu, then click “Submit.” Select Docket ID “OTS-2007-0015” to view public comments for this advance notice of proposed rulemaking. • *Viewing Comments On-Site:* You may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment for access, call
(202)906-5922, send an e-mail to *public.info@ots.treas.gov,* or send a facsimile transmission to
(202)906-6518. (Prior notice identifying the materials you will be requesting will assist us in serving you.) We schedule appointments on business days between 10 a.m. and 4 p.m. In most cases, appointments will be available the next business day following the date we receive a request. FOR FURTHER INFORMATION CONTACT: Glenn Gimble, Senior Project Manager, Compliance and Consumer Protection Division,
(202)906-7158; Suzanne McQueen, Consumer Regulations Analyst, Compliance and Consumer Protection Division,
(202)906-6459; or Richard Bennett, Compliance Counsel, Regulations and Legislation Division,
(202)906-7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: I. Purpose and Goals of This ANPR The mission of OTS is “to supervise savings associations and their holding companies in order to maintain their safety and soundness and compliance with consumer protection laws, and to encourage a competitive industry that meets America's financial services needs.” 1 Consistent with our mission, OTS is issuing this ANPR to determine whether the agency should expand its current prohibitions against unfair or deceptive acts or practices. 1 OTS Mission Statement, available at *http://www.ots.treas.gov/mission.cfm?catNumber=39.* The ANPR identifies some of the issues that may warrant OTS's review. The discussion is not exhaustive of all the issues that could be raised. OTS invites commenters to respond to the questions presented and to offer comments or suggestions on any other issues related to unfair or deceptive acts or practices, including what other steps, OTS might undertake instead of or in addition to further rulemaking in this area. OTS recognizes that the financial services industry and consumers have benefited from consistency in rules and guidance as the federal banking agencies have adopted uniform or very similar rules in many areas. OTS is mindful of the goal of consistent interagency standards as it considers issues relating to unfair or deceptive acts and practices. II. Legal Background The primary legal bases for this rulemaking are the Federal Trade Commission Act (FTC Act), 15 U.S.C. 41-58, and the Home Owners' Loan Act (HOLA), 12 U.S.C. 1461 *et seq.* A. The FTC Act 1. Statutory Provisions Under section 18(f)(1) of the FTC Act, 15 U.S.C. 57a(f)(1), OTS is responsible for prescribing regulations to prevent unfair or deceptive acts or practices by savings associations in or affecting commerce, including acts or practices that are unfair or deceptive to consumers. 2 In granting this authority, Congress allowed OTS great flexibility in determining the appropriate regulatory approach. 2 We note some outdated language in the statute, but find that it has no bearing on OTS's rulemaking authority. First, the statute refers to OTS's predecessor agency, the Federal Home Loan Bank Board (FHLBB), rather than to OTS. However, in section 3(e) of the HOLA, Congress transferred this rulemaking power of the FHLBB among others to the Director of OTS. 12 U.S.C. 1462a(e). Second, the statute refers to “savings and loan institutions” in some provisions and “savings associations” in other provisions. Although “savings associations” is the term currently used in the HOLA, see e.g., 12 U.S.C. 1462(4), the terms “savings and loan institutions” and “savings associations” can be and are used interchangeably. Section 18(f)(1) also provides that OTS's regulations may take a variety of approaches “including” (but not limited to) regulations “defining with specificity” which acts or practices are unfair or deceptive, as well as regulations “containing requirements prescribed for the purposes of preventing such acts or practices.” Thus, in addition to listing specific acts or practices that are unfair or deceptive OTS may also impose measures designed to prevent such acts or practices from occurring. 3 The use of the word “including” reveals that even these two regulatory approaches are not meant to be the only options for OTS rulemaking. For example, OTS could issue principles-based regulations that articulate general principles and standards for evaluating whether acts or practices are unfair or deceptive, similar to OTS's principles-based Advertising rule (12 CFR 563.27). This provision of the FTC Act assigns the same rulemaking authority to the Board of Governors of the Federal Reserve System (Board) with respect to banks and to the National Credit Union Administration
(NCUA)with respect to federal credit unions. 3 The legislative history gives as an example an FTC rule that mandates certain testing procedures to determine the octane rating of gasoline to avoid unfair or deceptive octane ratings being posted on gasoline pumps. Senate Conference Report No. 93-1408, December 18, 1974 (to accompany S. 356), reprinted in 1974 U.S.C.C.A.N. 7702, 7764. Separately and additionally, section 18(f)(1) provides that whenever the Federal Trade Commission
(FTC)uses its authority in section 18(a)(1)(B) to prescribe a rule defining with specificity which acts or practices are unfair or deceptive, within 60 days after such rule takes effect OTS generally must promulgate substantially similar regulations prohibiting savings associations from engaging in substantially similar acts or practices and imposing similar requirements. Thus, this provision specifies procedures to ensure that the regulations of the OTS—at a minimum—are consistent with regulations the FTC may prescribe. It does not limit OTS's rulemaking authority or set a ceiling on the acts or practices that OTS can address in its regulations. However, it does set a floor for OTS's regulation, subject to two exceptions. 4 Section 18(f)(1) assigns the same rulemaking authority to the Board with respect to banks and to the NCUA with respect to federal credit unions. 4 One exception is if OTS finds that such acts or practices are not unfair or deceptive. This portion of section 18(f)(1) assigns the Board (with respect to banks) and the NCUA (with respect to federal credit unions) the same ability to make findings creating exceptions. The second exception is if the Board finds that implementation of similar regulations by banks, savings associations, or federal credit unions would seriously conflict with essential monetary and payments systems policies and the Board publishes such a finding and the reasons for it in the **Federal Register** . The two grants of rulemaking authority to OTS in section 18(f)(1) give OTS exclusive authority to promulgate unfair or deceptive acts or practices regulations applicable to savings associations. Section 5(a)(2) of the FTC Act, 15 U.S.C. 45(a)(2), expressly provides that the FTC's power to prevent unfair or deceptive acts or practices in or affecting commerce does not apply to savings associations, banks, or federal credit unions among others. Section 18(f)(3) expressly provides that OTS is to enforce the regulations it promulgates under section 18(f) through section 8 of the Federal Deposit Insurance Act (FDIA), 12 U.S.C. 1818. Section 8 of the FDIA authorizes OTS to take appropriate enforcement actions against savings associations for violations of any “law, rule, or regulation.” This enforcement authority includes enforcement actions for violations of section 5 of the FTC Act. 5 Section 18(f)(6) clarifies that OTS may use other authority it possesses to issue rules governing enforcement of the regulations it prescribes under section 18(f) regardless of any FTC Act rules issued by the Board. 5 OTS Op. Chief Counsel (June 9, 2006) at 11 n.52, available at *http:// www.ots.treas.gov/docs/5/56218.pdf* and OTS Op. Chief Counsel (October 25, 2004) at 10 n.37, available at *http://www.ots.treas.gov/docs/5/560404.pdf.* Section 18(f)(5), 15 U.S.C. 57a(f)(2), clarifies that the Office of the Comptroller of the Currency, the Board, and the Federal Deposit Insurance Corporation may exercise, in addition to section 8 of the FDIA, any other authority conferred on them by law and that, with respect to these agencies, a violation of any regulation prescribed under section 18(f) constitutes not just a regulatory violation, but a statutory violation as well. While this language does not reference OTS, section 8 itself authorizes OTS to take enforcement action for a violation of regulations, including applicable FTC Act regulations. 2. OTS Unfair or Deceptive Acts or Practices Rulemaking Under the FTC Act to Date OTS has exercised its rulemaking authority in the area of unfair or deceptive acts or practices to parallel the FTC's rulemakings. The FTC issued its Credit Practices Rule over 20 years ago. 49 FR 7740 (March 1, 1984). The FTC's rule took effect on March 1, 1985. Shortly after that effective date, the FHLBB (OTS's predecessor agency) issued a substantially similar rule. 50 FR 19325 (May 8, 1985). OTS's Credit Practices Rule (12 CFR part 535) is also similar to that of the Board (12 CFR part 227) and the NCUA (12 CFR part 706). OTS's Credit Practices Rule protects consumers by prohibiting certain unfair or deceptive acts and practices by a savings association in connection with consumer credit: 6 6 The rule also applies to an operating subsidiary of a federal savings association. See 12 CFR 559.3(h)(1). “The term ‘consumer’ means a natural person who seeks or acquires goods, services, or money for personal, family, or household purposes, and who applies for or is extended 'consumer credit' as defined in § 561.12 of [OTS's regulations].” 12 CFR 535.1(b) (definition of a consumer). In turn, OTS's section 561.12 regulation provides: “The term consumer credit means credit extended to a natural person for personal, family, or household purposes, including loans secured by liens on real estate and chattel liens secured by mobile homes and leases of personal property to consumers that may be considered the functional equivalent of loans on personal security: Provided, the savings association relies substantially upon other factors, such as the general credit standing of the borrower, guaranties, or security other than the real estate or mobile home, as the primary security for the loan. Appropriate evidence to demonstrate justification for such reliance should be retained in a savings association's files. Among the types of credit included within this term are consumer loans; educational loans; unsecured loans for real property alteration, repair or improvement, or for the equipping of real property; loans in the nature of overdraft protection; and credit extended in connection with credit cards.” For further information about OTS's Credit Practices rule see OTS Examination Handbook section 1355 (December 1999), available at *http://www.ots.treas.gov/docs/4/422242.pdf.* 1. Entering into, or enforcing provisions in a consumer credit obligation a savings association purchases, containing any of the following unfair credit practices (subject to certain exceptions):
(a)A cognovit or confession of judgment;
(b)an executory waiver or limitation of exemption from attachment on real or personal property;
(c)an assignment of wages or other earnings; or
(d)a nonpossessory security interests in household goods other than a purchase-money security interest. 2. Misrepresenting the nature or extent of cosigner liability or entering into a consumer credit transaction prior to notifying any cosigner about the extent of the cosigner's liability; and 3. Imposing a delinquency charge on a payment, when the only delinquency is due to late fees and delinquency charges on a prior payment, and the payment otherwise qualifies as a full and timely payment of any principal and interest owed. 7 7 OTS's Credit Practices Rule allows OTS to determine, upon application by an appropriate state agency, that provisions of the rule will not be in effect in a state that administers and enforces a state requirement or prohibition that affords a level of protection to consumers that is substantially equivalent to, or greater than, the protection afforded by the rule. 12 CFR 535.5. According to OTS records, it has granted one such application, to the State of Wisconsin. 51 FR 45879 (December 23, 1986). B. HOLA 1. Statutory Provisions While the FTC Act grants OTS exclusive authority to promulgate unfair or deceptive acts or practices regulations applicable to savings associations, HOLA gives OTS authority to promulgate regulations, including regulations on unfair or deceptive acts or practices, applicable to a variety of other entities within the savings association and savings and loan holding company structure. These other entities would also be subject to FTC rules on unfair or deceptive acts or practices. 8 8 Section 133(a)-(b) of the Gramm-Leach-Bliley Act, Pub. L. 106-102 (Nov. 12, 1999), clarified that while certain subsidiaries and affiliates of savings associations would not be deemed to be savings associations for purposes of the FTC Act, OTS could exercise its other authority over these entities under federal banking law. 15 U.S.C. 41 note. Under HOLA, OTS has the authority to regulate and examine savings associations, subsidiaries owned in whole or part by a savings association, service corporations owned in whole or in part by a savings association, savings and loan holding companies, subsidiaries of savings and loan holding companies other than a bank or subsidiary of a bank, and certain service providers. 9 However, regulation of functionally regulated subsidiaries is subject to the functional regulation principles in the Gramm-Leach-Bliley Act. 10 9 12 U.S.C. 1462a(b)(2), 1463(a), 1464(a), 1464(d)(7)(A), 1464(d)(7)(D), 1467a(b), 1467a(g), 1467a(o)(7), and 1820(d); 12 CFR 559.3(o)(1), 559.3(o)(2), 563.170, and 584.1(g). OTS exercises enforcement authority over these entities under 12 U.S.C. 1464(d), 1464(d)(7)(C), 1467a(g), 1467a(o), 1813(q)(4), 1818 and 12 CFR 559.3(h)(1). Service providers are subject to OTS regulation and examination to the extent they perform authorized services for:
(1)A savings association;
(2)a subsidiary of a savings association; or
(3)a “savings and loan affiliate or entity” (i.e., a savings and loan holding company or a subsidiary other than a bank or subsidiary of that bank that is wholly-or partially-owned by a savings and loan holding company) that is regularly examined or subject to examination by the Director of OTS. 12 U.S.C. 1464(d)(7)(D). Some service providers are institution-affiliated parties (e.g., certain agents or independent contractors) for purposes of OTS enforcement authority. See 12 U.S.C. 1813(u) and 1818. 10 Section 45 of FDIA, 12 U.S.C. 1831v, and section 10 of the Bank Holding Company Act, 12 U.S.C. 1848a, as added and amended by sections 112 and 113 of GLBA. OTS is considering using its rulemaking authority under HOLA to issue regulations on unfair or deceptive acts or practices that would cover savings associations, non-functionally regulated subsidiaries owned in whole or part by a savings association, service corporations owned in whole or in part by a savings association, savings and loan holding companies, and non-functionally regulated subsidiaries of savings and loan holding companies other than a bank or subsidiary of a bank. OTS is not contemplating covering service providers directly with such a rulemaking at this time. Of course, savings associations and others covered directly by the rule would remain responsible for compliance with the rule, even if they outsource operations to a third party. Exercising HOLA authority in this manner would be consistent with HOLA's mandate that OTS ensure safety and soundness, since engaging in unfair or deceptive acts or practices can pose risk, including reputation risk, compliance risk, and legal risk. HOLA also assigns the Director of OTS a broad mandate to prescribe such regulations as he may determine necessary for carrying out the HOLA *and all other laws within his jurisdiction.* 12 U.S.C. 1462a(b)(2) (emphasis added). The other laws within OTS's jurisdiction include over thirty federal consumer protection statutes and regulations. OTS has jurisdiction to examine for compliance with and enforce these statutes and regulations, including section 5 of the FTC Act. 2. OTS Consumer Protection Rulemaking Under HOLA to Date In recognition of OTS's consumer protection mission and the mandate that the Director give primary consideration to the best practices of thrift institutions in the United States (12 U.S.C. 1464(a)), the agency has supplemented its Credit Practices Rule with other regulations issued under HOLA and other statutes. These rules are unique among the federal banking agencies in the way they protect consumers. One example is OTS's long-standing Advertising Rule, which prohibits savings associations from using advertising or making any representation that is inaccurate in any particular manner or that in any way misrepresents a savings association's services, contracts, investments, or financial condition. The rule encompasses all forms of advertising, including print or broadcast media, displays or signs, stationery, and all other promotional materials. 11 OTS enforces its Advertising rule under section 8 of the FDIA. 12 11 This rule dates back nearly 50 years. See 23 FR 9917 (December 23, 1958). 12 OTS Op. Acting Chief Counsel (September 3, 1993), available at 1993 OTS LEXIS 34. OTS has also used HOLA to impose consumer protections not otherwise mandated by federal law for home loans made by federal savings associations. These protections encompass regulation of late charges, prepayment penalties, and adjustments to the interest rate, payment, balance or term to maturity. For example, a federal savings association may not assess a late charge on a home loan for any payment received within 15 days of the due date. OTS has also issued a Nondiscrimination Rule (12 CFR part 528), which extends beyond the federal fair lending laws by prohibiting discrimination not covered by those laws. For example, OTS's Nondiscrimination Rule covers all services offered by a savings association, not just lending. 12 CFR 528.2. OTS's Nondiscrimination Rule also prohibits discrimination in lending on the basis of handicap and familial status regardless of whether or not the loan is residential real estate-related, whereas the Equal Credit Opportunity Act does not prohibit discrimination on these bases and the Fair Housing Act, while it prohibits discrimination on these bases, only covers residential real estate-related transactions. 12 CFR 528.2. Further, the rule imposes a requirement prescribed for the purposes of preventing lending discrimination by aiding in assessing fair lending compliance; it requires savings association and other lenders who file Home Mortgage Disclosure Act
(HMDA)Loan Application Registers with OTS to enter the reason for denials, whereas this information is otherwise optional under HMDA. Compare 12 CFR 528.6 with 12 CFR 203.5(c)(1). OTS recognizes that acts or practices that are unfair or deceptive might also violate other statutes or regulations addressing similar conduct. Conversely, an act or practice may be unfair or deceptive even though it does not violate other statutes or regulations addressing similar conduct. C. Issues *Issue 1.* Should OTS consider further rulemaking on unfair or deceptive acts or practices that would cover products and services in addition to consumer credit? If so, should the rule be limited to financial products and services and how should that scope be defined? *Issue 2.* Should OTS consider further rulemaking on unfair or deceptive acts or practices that would cover more than just the savings association, but related entities as well? III. Principles in Defining Unfair or Deceptive Acts or Practices Part 535 of OTS's regulations address prohibited consumer credit practices. However, to date, OTS has not provided comprehensive guidance explaining which principles define unfair or deceptive acts or practices. Similarly, OTS has not provided comprehensive guidance on which specific acts or practices it considers unfair or deceptive other than those articulated in the Credit Practices rule. OTS is considering a variety of approaches to provide further definition, including the following, either individually or by combining two or more approaches. A. FTC Model OTS could adopt guidance issued by the FTC as OTS's standard and incorporate it into an OTS regulation. 13 We note that other federal banking agencies have used the FTC guidance in developing guidance on unfair or deceptive acts or practices for entities they regulate. 14 13 See FTC's Policy Statement on Unfairness, issued on December 17, 1980, available at *http://www.ftc.gov/policystmt/ad-unfair.htm* ; FTC's Policy Statement on Deception, issued on October 14, 1983, available at *http://www.ftc.gov/bcp/policystmet/ad-decept.htm* . 14 See Board and FDIC guidance entitled, “Unfair or Deceptive Act or Practices by State-Chartered Banks,” issued on March 11, 2004, available at *http://www.fdic.gov/news/news/financial/2004/fil2604a.html* and OCC guidance in Advisory Letter 2002-3, “Guidance on Unfair or Deceptive Acts or Practices” issued on March 22, 2002, available at *http://www.occ.treas.gov/ftp/advisory/2002-3.doc* . In sum, the FTC guidance provides that acts or practices are unfair where:
(1)The act or practice causes or is likely to cause substantial injury to consumers;
(2)consumers cannot reasonably avoid the injury; and
(3)the injury is not outweighed by countervailing benefits to consumers or to competition. Public policy is also considered in analyzing whether a particular act or practice is unfair. Acts or practices are deceptive where the act or practice involves a representation, omission, or other practice that
(1)misleads or is likely to mislead the consumer;
(2)the consumer reasonably interprets under the circumstances; and
(3)is material. B. Converting Guidance Into Rules OTS, both individually and on an interagency basis, has issued several important pieces of guidance to the industry on consumer protection issues. OTS could convert all or portions of this guidance into regulatory requirements under the rubric of unfair or deceptive acts or practices. For example, the recently issued interagency Statement on Working with Mortgage Borrowers encourages institutions to consider prudent workout arrangements that increase the potential for financially stressed residential borrowers to keep their homes for those borrowers who have demonstrated a prior willingness and ability to repay the loan according to its terms. 15 OTS could identify, as a principle, that failing to consider and implement reasonable workout arrangements is an unfair practice and incorporate such a finding into a rulemaking. 15 OTS CEO Memorandum # 255 (April 17, 2007,) available at *http://www.ots.treas.gov/docs/2/25255.pdf* . Other recent guidance OTS could similarly draw from includes: • Interagency Guidance on Nontraditional Mortgage Product Risks, 71 FR 58609 (October 4, 2006). • Interagency Statement on Subprime Mortgage Lending, 72 FR 37569 (July 10, 2007). • OTS Guidance on Overdraft Protection Programs, 70 FR 8428 (February 18, 2005). • OTS Guidance on Gift Card Programs, OTS CEO Memorandum 254 (February 28, 2007). C. Other Federal Agency Models OTS could consider issuing guidelines along the lines of the OCC's Guidelines Establishing Standards for Residential Mortgage Lending Practices. 16 These Guidelines advise national banks against becoming involved, directly or indirectly, in residential mortgage lending activities involving abusive, predatory, unfair or deceptive lending practices. The Guidelines list as examples equity stripping, fee packing, loan flipping, refinancing special mortgages, and encouragement of default. Other sections of the guidelines discuss prudent consideration of certain loan terms, conditions and features that may, under particular circumstances, be susceptible to abusive, predatory, unfair or deceptive practices. Among the practices listed are financing single premium credit insurance, negative amortization, balloon payments in short-term transactions, and prepayment penalties that are not limited to the early years of the loan, particularly in subprime loans. 16 12 CFR part 30, Appendix C. OTS could also consider the approach the Department of Housing and Urban Development
(HUD)has taken in connection with setting housing goals for secondary market mortgage purchases by Government Sponsored Enterprises
(GSEs)Fannie Mae and Freddie Mac. 17 HUD defines “HOEPA mortgages” to mean mortgage loans above the HOEPA thresholds but including loans to finance the acquisition or initial construction of a consumer's principal dwelling and open-end credit plans, which are both otherwise excluded from HOEPA. 18 HUD defines “mortgages with unacceptable terms and conditions” to include loans with excessive fees (generally total points and fees charged to a borrower exceeding the greater of five percent of the loan amount or $1,000), prepayment penalties except in limited circumstances, prepaid single premium credit life insurance, or failure of the lender to adequately consider the borrower's ability to make payments. 19 17 It is the duty of an independent office within HUD, the Office of Federal Housing Enterprise Oversight (OFHEO), to ensure that these GSEs are adequately capitalized and operating in a safe and sound manner. 12 U.S.C. 4511 and 4513; 12 CFR 1700.1. Except for that authority of OFHEO and other matters relating to safety and soundness, the Secretary of HUD has general regulatory power over these GSEs to ensure that the purposes of their chartering acts and the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Pub. L. 102-550) are accomplished. 12 U.S.C. 4541; 24 CFR 81.1. See also HUD's Regulation of Fannie Mae and Freddie Mac, available at *http://www.hud.gov/offices/hsg/gse/gse.cfm.* 18 24 CFR 81.2(b). 19 24 CFR 81.2(b). HUD's regulations provide that GSE purchases of mortgages in either category do not count toward meeting the GSEs' goals for purchasing mortgages. 20 OTS could consider restricting OTS-regulated entities from originating (or purchasing) such loans as unfair or deceptive. 20 CFR 81.16(c)(12). D. State Law Models OTS could prohibit specific unfair or deceptive acts or practices of the types listed in various state unfair or deceptive acts or practices statutes. For example, the Michigan Consumer Protection Act prohibits dozens of specific acts or practices such as causing a probability of confusion or misunderstanding as to the legal rights, obligations, or remedies of a party to a transaction or gross discrepancies between the oral representations of the seller and the written agreement covering the same transaction or failure of the other party to the transaction to provide the promised benefits. 21 21 MCLS § 445.902 (2007). For mortgage lending, OTS could also prohibit specific unfair or deceptive acts or practices of the types listed in various state predatory lending laws. For example, North Carolina's predatory lending law 22 covers all consumer home loans (first and second liens and manufactured housing). It limits prepayment penalties, financing credit insurance, flipping, and default incentives. It describes a class of high cost home loans with high points and fees or annual percentage rate (APR), and for those loans it requires consumer counseling and prohibits financing fees and points in the loans. 23 The North Carolina law expressly provides that making a loan in violation of the law constitutes an unfair or deceptive act or practice under North Carolina law. 24 22 1999 N.C. Sess. Laws 332 as amended by 2003 N.C. Sess. Laws 401, available at *http://www.ncga.state.nc.us/EnactedLegislation/SessionLaws/PDF/1999-2000/SL1999-332.pdf* and *http://www.ncga.state.nc.us/EnactedLegislation/SessionLaws/PDF/2003-2004/SL2003-401.pdf.* 23 OTS notes, however, that the impact of the North Carolina law and other state predatory lending laws is a matter of some disagreement. Among many studies is one from the Government Accountability Office (GAO), which reported in 2004 that the impact of North Carolina's laws on high cost loans and licensing of brokers was uncertain. GAO, Consumer Protection: Federal and State Agencies Face Challenges in Combating Predatory Lending, GAO-04-280 (January 2004), available at *http://www.gao.gov/new.items/d04280.pdf.* 24 N.C. Gen. Stat. section 24-10.2(e)(2007). E. Targeted Practices Approach Under this approach, OTS could simply list a number of specific practices that it would prohibit as unfair or deceptive, such as in the area of credit card lending, residential mortgage lending, gift cards, and deposit accounts. For example, OTS could consider listing the following under this approach: 1. Credit Card Lending a. Imposing an interest rate increase that is triggered by adverse information unrelated to the credit card account or card issuer. This practice is commonly referred to as “universal default” or, more recently as, adverse action pricing in contrast to long-established risk based pricing. b. Imposing an over-the-limit-fee that is triggered by the imposition of a penalty fee, such as a late fee. c. Charging penalty fees in consecutive months based on previous late or over the limit transactions, not on a new or additional transaction offense. d. Requiring as a condition of a credit card account, a consumer's waiver of his or her right to a court trial and consent to binding mandatory arbitration. e. Applying payments first to balances subject to a lower rate of interest before applying to balances subject to higher rates of interest or applying payments first to fees, penalties, or other charges before applying them to principal and interest. 2. Residential Mortgage Lending a. Repetitive refinancing of the same mortgage loan by the same lender whereby the consumer's equity is used to finance the refinancing and from which transaction fees are paid and whereby the consumer does not financially benefit from the terms of the new loan over the terms of the old loan. b. Encouraging a consumer to default on a loan as a prerequisite to refinancing the loan. c. Imposing changes in loan terms upon default, such as imposing significant interest rate increases or a balloon payment. d. Layering discretionary pricing on top of pricing that has already taken risk into account, for example, where a branch or loan officer charges more points than called for by the rate sheet provided by the institution's central office. e. Force placing hazard insurance without first giving reasonable notice to borrowers to cure a deficiency. f. Failing to employ reasonable loss mitigation measures prior to initiating foreclosure. 3. Gift Cards a. Imposing fees that exceed a certain amount or percentage of the original gift amount. b. Setting an expiration date less than one year from the date of issuance. 4. Deposit Accounts Freezing accounts containing federal benefit payments upon receipt of attachment or garnishment orders and setting off of debts owed to the financial institution from federal benefit payments deposited in accounts. 25 25 House Committee on Financial Services Chairman Frank has expressed concerns about these practices and certain interstate debt collection practices. See Letter from Chairman Frank to OTS *et al.* , June 21, 2007, available at *http://www.house.gov/apps/list/press/financialsvcs_dem/press2062707.shtml* . F. Issues on Alternative Models and Approaches *Issue 3.* What would be the impact on the industry and consumers of any of the various models and approaches discussed? *Issue 4.* OTS's current Credit Practices rule lists specific acts or practices that are unfair or deceptive *per se* ; it prohibits such practices regardless of the specific facts or circumstances. Would it be appropriate for OTS to determine that additional acts or practices are unfair or deceptive *per se* regardless of the specific facts or circumstances? *Issue 5.* Should OTS consider a principles-based approach to a potential rulemaking that can evolve as products, practices and services change? If so, what principles should OTS consider in determining that a specific act or practice is unfair or deceptive? Please provide examples. *Issue 6.* Are the principles in the FTC guidance appropriate for the thrift industry? Should OTS consider adopting and incorporating them as part of an enhanced rule on unfair or deceptive acts or practices that includes standards to determine whether a particular act or practice is unfair or deceptive? Are any of the other models or approaches discussed in part III of this Supplementary Information appropriate for OTS to consider? What other models, approaches, or principles should OTS consider? *Issue 7.* Can the acts or practices encompassed within any particular model or approach described in part III of this Supplementary Information be conducted in a manner that is not unfair or deceptive to the consumer? If so, how? *Issue 8.* The FTC has taken enforcement actions for violations of section 5 of the FTC Act. Should OTS draw specific examples of unfair or deceptive practices from FTC enforcement actions? If so, which examples? *Issue 9.* How would the practices in OTS's current Credit Practices rule and those identified in part III of this Supplementary Information fit into any of those approaches? *Issue 10.* Are the acts or practices currently listed in the Credit Practices rule the only ones that are capable of targeting specific conduct without allowing for easy circumvention or having unintended consequences? *Issue 11.* Has the current rule been easy to circumvent or created unintended consequences? What would be the impact, in this regard, of including additional acts or practices in the rule? IV. Advertising As referenced in Part II.B.2 of this Supplementary Information , OTS's Advertising Rule (12 CFR 563.27) prohibits savings associations from using advertising or making any representation that is inaccurate in any particular manner or that in any way misrepresents a savings association's services, contracts, investments, or financial condition. The rule encompasses all forms of advertising, including print or broadcast media, displays or signs, stationery, and all other promotional materials. OTS has previously articulated two principles in interpreting its Advertising rule: 1. The rule prohibits both misstatements of material facts and omissions of material facts. 26 For example, it prohibits false representations to the public about a savings association's deposit accounts, including misrepresentations regarding the extent of FDIC insurance coverage. 27 26 FHLBB Memorandum R-51a (September 9, 1981), available at 1981 FHLBB LEXIS 33. 27 OTS Op. Acting Chief Counsel (September 3, 1993), available at 1993 OTS LEXIS 34. 2. The rule prohibits statements that, while technically accurate, would mislead a consumer. For example, it prohibits stating that money can be withdrawn from a passbook account at any time without also indicating that such withdrawals will result in a loss of interest. 28 28 FHLBB Inter-Office Communication (January 18, 1977), available at 1977 FHLBB LEXIS 219. For more information about this rule see OTS Examination Handbook section 1355 (December 1999), available at *http://www.ots.treas.gov/docs/4/422261.pdf* . OTS is considering whether to expand its advertising rule by providing more comprehensive guidance. One approach OTS is considering would be to incorporate materials from FTC advertising guides. FTC has issued advertising guides related to bait advertising (16 CFR part 238), the use of the word “free” and similar representations (16 CFR part 251), deceptive pricing (16 CFR part 233), advertising warranties and guarantees (16 CFR part 239), and endorsements and testimonials (16 CFR part 255). 29 OTS recognizes, however, that parts of these guides may not directly relate to the provision of financial products and services or be appropriate for a rule. 29 These FTC guides and other FTC guidance on unfair or deceptive advertising are summarized in a useful FTC publication entitled Advertising Practices, Frequently Asked Questions: Answers for Small Business (April 2001), available at *http://www.ftc.gov/bcp/conline/pubs/buspubs/ad-faqs.pdf* . Issues *Issue 12.* Should OTS expand its regulations on advertising to incorporate guides on advertising the FTC has issued under the FTC Act? If so, which examples or principles should OTS consider? *Issue 13.* What other acts or practices that may not currently be covered by OTS's advertising regulation should OTS consider prohibiting as unfair or deceptive in the advertising or marketing of products or services offered by OTS supervised entities? *Issue 14.* What would be the impact on the industry and consumers of expanding OTS's advertising regulation? V. Process for Resolving Questions Concerning Unfair Acts or Practices OTS recognizes that:
(1)No set of principles or standards, no matter how effectively crafted, will lend themselves to an easy determination in every case as to whether a practice would violate a regulation on unfair or deceptive acts or practices; and
(2)no established list of acts or practices deemed unfair or deceptive per se will ever be complete or current. OTS also recognizes that the overwhelming majority of institutions and the individuals employed by those institutions wish and seek to operate fairly with respect to the products and services they offer to their customers and other consumers. Furthermore, OTS is keenly aware of the subjectivity and burden involved in applying a set of principals or standards to a set of particular facts in any given case. For this reason, OTS has a longstanding practice whereby institutions (primarily through OTS regional offices) or consumers (primarily through OTS's Consumer Affairs or External Affairs functions) confer with OTS about a particular practice or a program about which they have questions. We expect this process to continue with respect to unfair or deceptive acts and practices questions or concerns. Executive Order 12866 OTS does not know now whether it will propose changes to its regulations and, if so, whether these changes will constitute a significant regulatory action under Executive Order 12866. This ANPR neither establishes nor proposes any regulatory requirements. OTS has submitted a notice of planned regulatory action to OMB for review. Because this ANPR does not contain a specific proposal, information is not available with which to prepare a regulatory analysis. OTS will prepare a preliminary regulatory analysis if it proceeds with a proposed rule that constitutes a significant regulatory action. Accordingly, OTS solicits comment, information, and data on the potential effects on the economy of changes to its regulations that commenters may recommend. OTS will carefully consider the costs and benefits associated with this rulemaking. Dated: July 31, 2007. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. E7-15179 Filed 8-3-07; 8:45 am] BILLING CODE 6720-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28882; Directorate Identifier 2007-NM-035-AD] RIN 2120-AA64 Airworthiness Directives; Goodrich Evacuation Systems Approved Under Technical Standard Order
(TSO)TSO-C69b and Installed on Airbus Model A330-200 and -300 Series Airplanes, Model A340-200 and -300 Series Airplanes, and Model A340-541 and -642 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to Goodrich evacuation systems approved under TSO-C69b and installed on certain Airbus Model A330-200 and -300 series airplanes, Model A340-200 and -300 series airplanes, and Model A340-541 and -642 airplanes. The existing AD currently requires inspecting to determine the part number of the pressure relief valves on the affected Goodrich evacuation systems, and corrective action if necessary. For certain airplanes, this proposed AD would require an additional inspection to determine the part number of the pressure relief valves, and corrective action if necessary. This proposed AD results from a report indicating that, during maintenance testing, the pressure relief valves on the affected Goodrich evacuation systems did not seal when activated, which caused the pressure in the escape slide/raft to drop below the minimum allowable raft mode pressure. We are proposing this AD to prevent loss of pressure in the escape slides/rafts after an emergency evacuation, which could result in inadequate buoyancy to support the raft's passenger capacity during ditching, and increase the chance for injury to raft passengers. DATES: We must receive comments on this proposed AD by September 20, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Goodrich, Aircraft Interior Products, ATTN: Technical Publications, 3414 South Fifth Street, Phoenix, AZ 85040, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Tracy Ton, Aerospace Engineer, Cabin Safety/Mechanical and Environmental Systems Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5352; fax
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-28882; Directorate Identifier 2007-NM-035-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or may can visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone
(800)647-5527) is located on the ground floor of the West Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion On May 31, 2006, we issued AD 2006-12-08, amendment 39-14633 (71 FR 33606, June 12, 2006), for Goodrich evacuation systems approved under TSO-C69b and installed on certain Airbus Model A330-200 and -300 series airplanes, Model A340-200 and -300 series airplanes, and Model A340-541 and -642 airplanes. [A correction of that AD was published in the **Federal Register** on June 28, 2006 (71 FR 36674).] That AD requires inspecting to determine the part number of the pressure relief valves on the affected Goodrich evacuation systems, and corrective action if necessary. That AD resulted from a report indicating that, during maintenance testing, the pressure relief valves on the affected Goodrich evacuation systems did not seal when activated, which caused the pressure in the escape slide/raft to drop below the minimum allowable raft mode pressure. We issued that AD to prevent loss of pressure in the escape slides/rafts after an emergency evacuation, which could result in inadequate buoyancy to support the raft's passenger capacity during ditching, and increase the chance for injury to raft passengers. Relevant Service Information We have reviewed Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006 (Goodrich Service Bulletin 25-355, dated July 25, 2005, was referred to as the appropriate source of service information for accomplishing the required actions specified in AD 2006-12-08). The procedures in Revision 1 of the service bulletin are essentially the same as the original except Revision 1 adds the following inspection for certain airplanes: For Model A340-500 airplanes having evacuation system part number (P/N) 4A3928-( ), inspect for pressure relief valve P/N 4A3791-6 and replace with P/N 4A3641-26 if necessary. Revision 1 of the service bulletin also corrects certain serial numbers and part numbers specified in the tables in paragraph 1.A. Effectivity of the service bulletin. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. Clarification of Alternative Method of Compliance
(AMOC)Paragraph We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2006-12-08 and would retain the requirements of the existing AD. For certain airplanes, this proposed AD would also require an additional inspection to identify a different pressure relief valve and corrective action if necessary. Costs of Compliance There are about 689 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 27 airplanes of U.S. registry. The actions that are required by AD 2006-12-08 and retained in this proposed AD take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the currently required actions is $2,160, or $80 per airplane. All airplanes affected by the new proposed action are currently operated by non-U.S. operators under foreign registry. If an affected airplane is imported and placed on the U.S. Register in the future, the new proposed actions would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the new actions specified in this proposed AD for U.S. operators is $80 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14633 (71 FR 33606, June 12, 2006) corrected at 71 FR 36674, June 28, 2006, and adding the following new airworthiness directive (AD): **Goodrich (Formerly BF Goodrich):** Docket No. FAA-2007-28882; Directorate Identifier 2007-NM-035-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by September 20, 2007. Affected ADs
(b)This AD supersedes AD 2006-12-08. Applicability
(c)This AD applies to Goodrich Evacuation Systems Approved Under Technical Standard Order
(TSO)TSO-C69b, as installed on Airbus Model A330-201, -202, -203, -223, -243, -301, -321, -322, -323, -341, -342, and -343 airplanes; Model A340-211, -212, -213, -311, -312, and -313 airplanes; and Model A340-541 and -642 airplanes; certificated in any category. Unsafe Condition
(d)This AD results from a report indicating that, during maintenance testing, the pressure relief valves on the affected Goodrich evacuation systems did not seal when activated, which caused the pressure in the escape slide/raft to drop below the minimum allowable raft mode pressure. We are issuing this AD to prevent loss of pressure in the escape slides/rafts after an emergency evacuation, which could result in inadequate buoyancy to support the raft's passenger capacity during ditching, and increase the chance for injury to raft passengers. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 2006-12-08 Inspection for Certain Part Number (P/N)
(f)For all airplanes: Within 36 months after July 17, 2006 (the effective date of AD 2006-12-08): Perform an inspection to determine the part number (P/N) of the pressure relief valve on the Goodrich evacuation systems in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 25-355, dated July 25, 2005, or Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006. After the effective date of this AD, only Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006, may be used.
(1)If any pressure relief valve having P/N 4A3791-3 is installed, before further flight, replace the valve with a new or serviceable valve having P/N 4A3641-1 and mark the girt adjacent to the placard, in accordance with the Accomplishment Instructions of the service bulletin.
(2)If any pressure release valve having P/N 4A3641-1 is installed, before further flight, mark the girt adjacent to the placard in accordance with the Accomplishment Instructions of the service bulletin. Part Installation for Airplanes Identified in Original Issue of the Service Bulletin
(g)As of July 17, 2006, no person may install a pressure relief valve having P/N 4A3791-3, on any airplane equipped with Goodrich evacuation systems identified in Goodrich Service Bulletin 25-355, dated July 25, 2005. New Requirements of This AD Inspection for Certain Other P/N
(h)For Model A340-541 airplanes: Within 36 months after the effective date of this AD, perform an inspection to determine the P/N of the pressure relief valve on the Goodrich evacuation systems in accordance with the Accomplishment Instructions of Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006.
(1)If any pressure relief valve having P/N 4A3791-6 is installed, before further flight, replace the valve with a new or serviceable valve having P/N 4A3641-26 and mark the girt adjacent to the placard, in accordance with the Accomplishment Instructions of the service bulletin.
(2)If any pressure release valve having P/N 4A3641-26 is installed, before further flight, mark the girt adjacent to the placard in accordance with the Accomplishment Instructions of the service bulletin. Parts Installation for All Airplanes
(i)As of the effective date of this AD, no person may install a pressure relief valve having P/N 4A3791-3, on any airplane equipped with Goodrich evacuation systems identified in Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006.
(j)As of the effective date of this AD, no person may install a pressure relief valve having P/N 4A3791-6, on any airplane equipped with Goodrich evacuation systems identified in Goodrich Service Bulletin 25-355, Revision 1, dated July 24, 2006. Alternative Methods of Compliance (AMOCs) (k)(1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)AMOCs approved previously in accordance with AD 2006-12-08 are approved as AMOCs for the corresponding provisions of this AD. Issued in Renton, Washington, on July 30, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-15222 Filed 8-3-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-28881; Directorate Identifier 2006-NM-263-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 Series Airplanes, Equipped with a Tail Cone Evacuation Slide Container Installed in Accordance With Supplemental Type Certificate
(STC)ST735SO AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 series airplanes, equipped with tail cone evacuation slide containers as specified above. This proposed AD would require modifying the tail cone slide. This proposed AD also would require additional tail cone drops and slide deployments, and repair if necessary. This proposed AD results from several reports of inadvertent tail cone deployments in which the tail cone slide failed to deploy. We are proposing this AD to ensure that the tail cone evacuation slide deploys correctly; failure of the slide to deploy during an emergency evacuation could result in injury to flightcrew and passengers. DATES: We must receive comments on this proposed AD by September 20, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide Rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Northwest Airlines, Inc., 7500 Airline Drive, Minneapolis, Minnesota, 55450-1101, Mail Stop: 8953, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Cheyenne Del Carmen, Aerospace Engineer, Cabin Safety/Mechanical and Environmental Systems Branch, ANM-150L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5338; fax
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-28881; Directorate Identifier 2006-NM-263-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Operations office (telephone
(800)647-5527) is located on the ground floor of the West Building at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received several reports that the tail cone emergency slide failed to deploy on McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 series airplanes, equipped with tail cone evacuation slide containers installed in accordance with supplemental type certificate
(STC)ST735SO. Although we are doing further investigation and analysis, it appears that the failures resulted from either the slide container not clearing the immediate area around the slide when the slide deployment handle is pulled, or contaminated Velcro attachments that allow the slide container lanyard to separate without pulling the container off and activating the inflation bottle. STC ST735SO for the tail cone emergency slide containers was surrendered to the Los Angeles Aircraft Certification Office (ACO), FAA, on January 21, 2003. Therefore, there is no manufacturer's service information related to this proposed AD. The affected operator must submit a method of compliance to the FAA for approval. Failure of the slide to deploy during an emergency evacuation could result in injury to flightcrew and passengers. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. For this reason, we are proposing this AD, which would require operators to modify the tail cone slide in accordance with a method approved by the FAA. One approved method is Northwest Airlines STC ST01967CH, issued March 19, 2007. STC ST01967CH describes the modification of the DC-9 tail cone slide. (STC ST01967CH refers to Northwest Airlines, Drawing 9B25-41477, Revision B, dated September 14, 2006; and Northwest Airlines, Drawing 9B25-90399, Revision D, dated December 21, 2006; as additional sources of service information for modifying the tail cone slide.) This proposed AD also would require additional tail cone drops and slide deployments to be done no earlier than 150 flight cycles and no later than 24 months after modifying the tail cone slide, for a minimum of 10 percent of an operator's fleet of affected airplanes (if fewer than 10 airplanes in the fleet: at least 1 airplane). If the tailcone and slide deployment is unsuccessful, this proposed AD would require repair in accordance with a method approved by the FAA. Costs of Compliance There are about 400 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 300 airplanes of U.S. registry. The tail cone drops/slide deployments would take about 16 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $1,300 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is about $774,000, or $2,580 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **McDonnell Douglas:** Docket No. FAA-2007-28881; Directorate Identifier 2006-NM-263-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by September 20, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to McDonnell Douglas Model DC-9-11, DC-9-12, DC-9-13, DC-9-14, DC-9-15, DC-9-15F, DC-9-21, DC-9-31, DC-9-32, DC-9-32 (VC-9C), DC-9-32F, DC-9-33F, DC-9-34, DC-9-34F, DC-9-32F (C-9A, C-9B), DC-9-41, and DC-9-51 airplanes, certificated in any category, equipped with a tail cone evacuation slide container installed in accordance with supplemental type certificate
(STC)ST735SO. Unsafe Condition
(d)This AD results from several reports of inadvertent tail cone deployments in which the tail cone slide failed to deploy. We are issuing this AD to ensure that the tail cone evacuation slide deploys correctly; failure of the slide to deploy during an emergency evacuation could result in injury to flightcrew and passengers. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Initial Actions To Address Slide Deployment Failures
(f)Within 24 months after the effective date of this AD: Modify the tail cone slide in accordance with a method approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA. Northwest Airlines STC ST01967CH, issued March 19, 2007, is one approved method. Note 1: STC ST01967CH refers to Northwest Airlines, Drawing 9B25-41477, Revision B, dated September 14, 2006; and Northwest Airlines, Drawing 9B25-90399, Revision D, dated December 21, 2006; as additional sources of service information for modifying the tail cone slide. Repeat Deployment and Terminating Action
(g)Within 150 flight cycles after doing the modification required by paragraph
(f)of this AD, or within 150 days after the effective date of this AD, whichever occurs later: Do additional tail cone drops and slide deployments on a minimum of 10 percent of an operator's fleet of affected airplanes (if fewer than 10 airplanes in the fleet: At least one airplane).
(1)If the tailcone and slide deployments are successful according to the applicable McDonnell Douglas DC-9 maintenance manual, no further action is required by this AD.
(2)If any tailcone and slide deployment is unsuccessful according to the applicable McDonnell Douglas DC-9 maintenance manual, before further flight, repair in accordance with a method approved by the Manager, Los Angeles ACO, FAA. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Los Angeles ACO, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on July 30, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-15237 Filed 8-3-07; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2007-0610; FRL-8448-7] Revisions to the Arizona State Implementation Plan, Maricopa County AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve revisions to the Maricopa County portion of the Arizona State Implementation Plan (SIP). This revision concerns reductions of particulate matter
(PM)emissions from the paving of unpaved road and use of these reductions to satisfy the offset requirements under the new source review provisions of the Clean Air Act as amended in 1990 (CAA or the Act). We are proposing to approve a local rule to assure that the PM emission reductions resulting from the road paving meet the criteria for valid offsets under the Act. DATES: Any comments on this proposal must arrive by September 5, 2007. ADDRESSES: Submit comments, identified by docket number EPA-R09-OAR-2007-0610, by one of the following methods: 1. *Federal eRulemaking Portal:* *http://www.regulations.gov.* Follow the on-line instructions. 2. *E-mail: steckel.andrew@epa.gov. * 3. *Mail or deliver:* Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. *Instructions:* All comments will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through *http://www.regulations.gov* or e-mail. *http://www.regulations.gov* is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send e-mail directly to EPA, your e-mail address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* The index to the docket for this action is available electronically at *http://www.regulations.gov* and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section. FOR FURTHER INFORMATION CONTACT: Lily Wong, EPA Region IX,
(415)947-4114, *Wong.Lily@epa.gov.* SUPPLEMENTARY INFORMATION: This proposal addresses the following local rule: Maricopa County Air Quality Department Rule 242, “Emission Offsets Generated by the Voluntary Paving of Unpaved Roads.” In the Rules and Regulations section of this **Federal Register** , we are approving this local rule in a direct final action without prior proposal because we believe these SIP revisions are not controversial. If we receive adverse comments, however, we will publish a timely withdrawal of the direct final rule and address the comments in subsequent action based on this proposed rule. We do not plan to open a second comment period, so anyone interested in commenting should do so at this time. If we do not receive adverse comments, no further activity is planned. For further information, please see the direct final action. Dated: July 20, 2007. Keith Takata, Acting Regional Administrator, Region IX. [FR Doc. E7-15119 Filed 8-3-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 409, 410, 411, 413, 414, 415, 418, 423, 424, 482, 484, 485, and 491 [CMS-1385-CN] RIN 0938-AO65 Medicare Program; Proposed Revisions to Payment Policies Under the Physician Fee Schedule, and Other Part B Payment Policies for CY 2008; Proposed Revisions to the Payment Policies of Ambulance Services Under the Ambulance Fee Schedule for CY 2008; and the Proposed Elimination of the E-Prescribing Exemption for Computer-Generated Facsimile Transmissions; Corrections AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Proposed rule; correction notice. SUMMARY: This document corrects several technical and typographical errors in the proposed rule that was issued on July 2, 2007 and appeared in the July 12, 2007 **Federal Register** (72 FR 38122). The proposed rule addressed Medicare Part B payment policy, including the physician fee schedule
(PFS)that is applicable for calendar year
(CY)2008. The proposed rule also addressed refinements to relative value units
(RVUs)and physician self-referral issues. Specifically, the errors pertain to the following provisions: Drug compendia, telehealth services, competitive acquisition program (CAP), end-stage renal disease (ESRD), physician self-referral issues, therapy standards and requirements, Physician Quality Reporting Initiative, and the payment impact on physician fee schedule services. FOR FURTHER INFORMATION CONTACT: Diane Milstead
(410)786-3355. SUPPLEMENTARY INFORMATION: I. Background In FR Doc. 07-3274 (72 FR 38122), the proposed rule entitled “Medicare Program; Proposed Revisions to Payment Policies Under the Physician Fee Schedule, and Other Part B Payment Policies for CY 2008; Proposed Revisions to the Payment Policies of Ambulance Services Under the Ambulance Fee Schedule for CY 2008; and the Proposed Elimination of the E-Prescribing Exemption for Computer-Generated Facsimile Transmissions” (hereinafter referred to as the CY 2008 PFS proposed rule), there were technical and typographical errors that are identified and corrected in this correction notice. II. Correction of Errors In FR Doc. 72-3274 of July 12, 2007 (72 FR 38211), make the following corrections: A. Corrections to the Preamble 1. On page 38122, 3rd column, 14th full paragraph, line 1 the phrase “Karen Rinker
(410)786-0189” is corrected to read “Karen Rinker
(410)786-0189 or Kate Tillman
(410)786-9252”. 2. On page 38123, 1st column, 1st full paragraph, line 1, the phrase “Lisa Ohrin
(410)786-4565” is corrected to read “Lisa Ohrin
(410)786-4565 or Joanne Sinsheimer
(410)786-4620”. 3. On page 38125, 1st column, after line 72, the phrase “SLPs Speech-language pathologists” is added. 4. On page 38145, 1st column, 1st full paragraph, lines 21 and 22, the phrase “96118 through and 99620” is corrected to read “96118 through 96120”. 5. On page 38154, 3rd column, 1st paragraph, line 39, “suppler” is corrected to read “supplier”. 6. On page 38155, 1st column, 1st full paragraph, line 24, “physician's office have also been used to”, is corrected to read “physician's office to”. 7. On page 38158, 3rd column, 2nd full paragraph, line 5, “participating CAP” is corrected to read “participating CAP”. 8. On page 38159, 3rd column, 1st full paragraph, line 6, the phrase “using prefilling” is corrected to read “using prefilled”. 9. On page 38160, 1st column, 1st full paragraph, line 14, the phrase “pharmacy laws” is corrected to read “pharmacy laws)”. 10. On page 38164, 1st column, 1st full paragraph, line 14, the phrase “REPORT TO CONGRESS” is corrected to read “Report to Congress”. 11. On page 38179, 3rd column, line 3, the phrase “The physician or other supplier's” is corrected to read “The physician's or other supplier's”. 12. On page 38180, a. Second column, lines 54 and 55, the phrase “or through some other means” is corrected to read “or through some other means)”. b. Third column, 2nd full paragraph, line 10, “an anti-markup” is corrected to read “an anti-markup provision”. c. Third column, 3rd full paragraph, lines 4 and 5, “a DHS” is corrected to read “a designated health service”. 13. On page 38181, 3rd column, 1st full paragraph, lines 5 and 6, “a DHS” is corrected to read “a designated health service”. 14. On page 38182, a. Second column, last paragraph, lines 2 and 3, the phrase “the prohibition of physician referrals” is corrected to read “the prohibition on physician referrals”. b. Third column, 1st full paragraph, lines 4 and 5, the phrase “such as a magnetic resonance imaging
(MRI)machine)” is corrected to read “such as an MRI machine)”. 15. On page 38183, a. First column, 1st full paragraph,
(1)Lines 6 and 7, the phrase “by a physician lessor to the entity.” is corrected to read “by a physician lessor to the entity lessee.”
(2)Line 17, “for patient referred” is corrected to read “for patients referred”. b. Second column, 1st full paragraph,
(1)Lines 3 and 4, the phrase “where the parties have returned,” is corrected to read “where a party has returned,”.
(2)Lines 10 and 12, the phrase “we might allow the parties to terminate the period of disqualification” is corrected to read “the period of disallowance may terminate”. 16. On page 38184, a. First column, 1st full paragraph, line 26 the phrase “§ 411.354(d)(1) read,” is corrected to read “§ 411.354(d)(1) stated:”. b. Third column,
(1)First full paragraph,
(a)Lines 16 and 17, the phrase “that we finalize” is corrected to read “that we may finalize”.
(b)Line 19, the phrase “standing on the shoes” is corrected to read “standing in the shoes”.
(2)Second full paragraph, line 9, the phrase “or a personal services” is corrected to read “or a personal service”. 17. On page 38184, 3rd column, 2nd full paragraph, line 14 through page 38185, 1st column, 1st partial paragraph, line 7, the sentence “One commenter stated that we should exercise our discretion in pursuing minor violations and the failure to meet the procedural requirements of an exception (such as obtaining all required signatures prior to commencement of the agreement for personal services) and technical violations.” is corrected to read “One commenter stated that we should exercise our discretion in pursuing minor violations and any violations involving a failure to meet the procedural or form requirements of an exception (such as obtaining all required signatures prior to commencement of the agreement for personal services).” 18. On page 38185, a. First column, 1st full paragraph,
(1)Lines 9 through 11, the phrase “to address only inadvertent, violations in which an agreement fails to satisfy the procedural of “form” requirements of an exception of the statute or regulations” is corrected to read “to address only inadvertent violations in which an agreement fails to satisfy the procedural or “form” requirements of an exception in the statute or regulations”.
(2)Line 18, the phrase “or set in advance” is corrected to read “or set in advance, etc.” b. Second column,
(1)First partial paragraph, line 5, the phrase “under the False Claims Act;” is corrected to read “under the False Claims Act);”.
(2)First full paragraph,
(a)Line 22, the phrase “exception that meets” is corrected to read “exception meets”.
(b)Lines 23 and 24, the phrase “method of compliance” is corrected to read “method for compliance”. c. Third column,
(1)First partial paragraph, line 22, the phrase “method of compliance” is corrected to read “method for compliance”.
(2)Second partial paragraph, last line, the phrase “criteria as satisfying” is corrected to read “as satisfying”. 19. On page 38186, a. First column, 1st partial paragraph, lines 16 and 17, the phrase “satisfy a procedural of “form” requirement” is corrected to read “satisfy a procedural or “form” requirement”. b. Second column,
(1)First full paragraph,
(a)Line 6, the phrase “prohibits the entity” is corrected to read “prohibit the entity”.
(b)Lines 28 through 32, “The Internet-Only Manual
(IOM)manual 100-01, Medicare General Information, Eligibility and Entitlement Manual, Pub. 100-01, at Chapter 5, section 10.3” is corrected to read “The CMS Internet-Only Manual (IOM), publication 100-01, Medicare General Information, Eligibility and Entitlement Manual, Chapter 5, section 10.3”.
(2)Second full paragraph, lines 12 and 13, the phrase “the physician can potentially recognize” is corrected to read “the physician can potentially realize”. 20. On page 38187, a. Second column, 3rd full paragraph, lines 21 and 22, the phrase “transport; and
(2)another person” is corrected to read “transport;
(2)another person”. b. Third column, 2nd full paragraph, line 8, the phrase “under § 424.36(b)(1) through (5)” is corrected to read “under § 424.36(b)(1) through (5))”. 21. On page 38191, a. Second column, last paragraph, last line, the phrase “pathologists at § 484.4” is corrected to read “pathologists
(SLPs)at § 484.4”. b. Third column, 1st paragraph, lines 7 and 8 the phrase “speech-language pathologists (SLPs)” is corrected to read “SLPs”. 22. On page 38200, in Table 16.—2007 PQRI Measures, after line 9, the table is corrected by adding the following sentence “Age-Related Macular Degeneration—Dilated Macular Examination.” 23. On page 38212, 3rd column, 4th full paragraph, the second bullet that begins with the phrase “Allowed Charges:” and ends with the phrase “allowed charges for the specialty” is deleted. 24. On page 38217, 3rd column, 1st partial paragraph, lines 1 and 2, the phrase “current 2006 payments and proposed 2007 payments.” is corrected to read “current 2007 payments and proposed 2008 payments.” B. Correction to the Regulations Text PART 409—[CORRECTED] 1. On page 38221, 1st column, last paragraph, and the second column, 1st partial paragraph, § 409.17 (a)(1)(ii) is corrected to read as follows: § 409.17 Physical therapy, occupational therapy, and speech-language pathology services.
(a)* * *
(1)* * *
(ii)Physical therapy, occupational therapy, or speech-language pathology services may be furnished by qualified physical therapists, physical therapist assistants, occupational therapists, occupational therapy assistants, or speech-language pathologists who have been licensed, certified, registered or otherwise regulated as physical therapists, physical therapist assistants, occupational therapists, occupational therapy assistants, or speech-language pathologists by the State in which practicing before January 1, 2008 and continue to furnish Medicare services at least part time without an interruption in furnishing services of more than 2 years. PART 410—[CORRECTED] 2. On page 38222, in the 3rd column, a. Lines 26 through 28, the amendatory statement for § 410.61 “Section 410.61 is amended by revising paragraph (e)(1) to read as follows:” is corrected to read “Section 410.61 is amended by revising paragraph
(e)to read as follows:”. b. Lines 32 through 38, the regulatory language for § 410.61(e) is corrected to read as follows: § 410.61 Plan of treatment requirements for outpatient rehabilitation services.
(e)*Review of the plan.* The physician, nurse practitioner, clinical nurse specialist or physician's assistant reviews the plan as often as the individual's condition requires, but at least at every certification and recertification. (Catalog of Federal Domestic Assistance Program No. 93.774, Medicare—Supplementary Medical Insurance Program) Dated: July 31, 2007. Ann C. Agnew, Executive Secretary to the Department. [FR Doc. E7-15182 Filed 8-3-07; 8:45 am] BILLING CODE 4120-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 070719385-7397-01] RIN 0648-AV59 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Revision of Vessel Monitoring System
(VMS)Requirements for Commercial Gulf Reef Fish Vessels AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues this proposed rule to revise VMS requirements applicable to the commercial reef fish fishery in the Gulf of Mexico
(Gulf)and to revise the allowable methods for complying with the advance notification of landing requirement in the Gulf red snapper individual fishing quota
(IFQ)program. Regarding the VMS program, this proposed rule would allow commercial reef fish vessel owners or operators to reduce the frequency of VMS transmissions while in port; extend the existing power-down exemption to include reef fish vessels while in port; and add a grandfather clause to address VMS units approved for use in the Gulf reef fish fishery. Regarding the IFQ program, this proposed rule would expand the allowable methods for communicating the required advance notification of landing. The intended effects of this proposed rule are to resolve an unanticipated technological problem with the VMS draining power from vessels that are in port without access to external power sources; provide a grandfather clause for previously approved Gulf reef fish VMS units; and facilitate compliance with the advance notification of landing requirement in the IFQ program. DATES: Written comments must be received on or before August 21, 2007. ADDRESSES: You may submit comments on the proposed rule by any of the following methods: • E-mail: *0648-AV59.Proposed@noaa.gov* . Include in the subject line the following document identifier: 0648-AV59. • Federal e-Rulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. • Fax: 727-824-5308; Attention: Peter Hood. Copies of documents supporting this proposed rule, which include a regulatory impact review
(RIR)and an initial regulatory flexibility analysis
(IRFA)may be obtained from NMFS at the address above. Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted in writing to Jason Rueter, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; email *Jason.Rueter@noaa.gov* and to David Rostker, Office of Management and Budget (OMB), by e-mail at *David_Rostker@omb.eop.gov* , or by fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail *peter.hood@noaa.gov* . SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council (Council) and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Gulf Reef Fish VMS Background The final rule to implement Amendment 18A to the FMP (71 FR 45428, August 9, 2006) requires an owner or operator of a vessel with a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat with a commercial reef fish vessel permit even when under charter, to ensure an operating VMS approved by NMFS for the Gulf of Mexico reef fish fishery is on board at all times. This requirement is applicable regardless of whether the vessel is underway unless exempted by NMFS. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. The effective date for that VMS requirement was May 6, 2007 (72 FR 10088, March 7, 2007). The August 9, 2006 final rule also requires that, unless exempted under the power down exemption, a VMS must transmit a signal indicating the vessel's accurate position at least once an hour, 24 hours a day every day. These regulatory requirements are also set forth in the NOAA Enforcement Vessel Monitoring System Requirements document, which is available from the NMFS Office for Law Enforcement (OLE), Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833. Need for VMS Revisions NMFS has recently been advised by a number of commercial reef fish vessel owners and operators that the amount of power drawn by some of the VMS units when complying with the requirements for continuous operation and hourly transmissions can drain all power from a vessel that is not underway and has no access to an external power source. In some circumstances, this could result in failure of critical vessel safety equipment such as bilge pumps, thereby potentially jeopardizing vessel and crew safety. VMS manufacturers have confirmed the potential for power drain under such circumstances and are pursuing technological solutions, i.e., configuring VMS units to include the capability to reduce frequency of transmissions. The current regulations provide for an exemption from the continuous VMS operation and hourly transmission requirements, but only for vessels that are “out of the water” for more than 72 hours or vessels that sign out of the VMS program for a minimum of 1 month and do not embark on any trip until the VMS is turned back on and verified by NMFS VMS personnel. These current exemptions do not address the power drain issue for vessels that remain in the water, in port, for more than 72 hours but less than 1 month; nor do they address vessels that may be “out of the water” , e.g., dry-docked or trailered, for less than 72 hours. Additional rulemaking is necessary to address these situations and avoid power loss and potential vessel and crew safety issues. Proposed VMS Revisions This proposed rule would revise the VMS requirements applicable to Gulf of Mexico commercial reef fish vessels to establish an “in-port” exemption to the hourly transmission requirement and to expand the current power-down exemption to include vessels “in port” for more than 72 consecutive hours. For the purposes of the Gulf of Mexico VMS requirements, “in port” would be defined to mean secured at a land-based facility, or moored or anchored after the return to a dock, berth, beach, seawall, or ramp. Specifically, this proposed rule would provide an “in-port” exemption that would allow vessels “in port” to transmit vessel location information every 4 hours rather than hourly. This would address the power-drain issue for vessels that are “in port” (whether the vessel is in the water or out of the water, consistent with the definition of “in port”) for less than 72 consecutive hours or for vessels that may be “in port” somewhat longer than 72 hours but whose owner or operator elects not to obtain the broader power-down exemption. The proposed expansion of the current power-down exemption, which is limited to vessels “out of the water”, to include vessels “in port” for more than 72 consecutive hours would address the power-drain issue for vessels that remain in the water, within the definition of “in port.” Some such vessels use port locations that do not provide access to external power sources, and the existing VMS requirements could result in excessive power drain and potential vessel safety issues. NMFS believes, after discussion with VMS manufacturers, some of the affected fishery participants, and NMFS law enforcement personnel, that these limited exemptions would adequately address the unanticipated power-drain issue while maintaining the necessary enforcement capability. Finally, this proposed rule would allow continued use of a VMS unit that was previously approved for the Gulf reef fish fishery if that unit is subsequently removed from the approved list of approved VMS units. At the end of such a VMS unit's service life, it would have to be replaced with a currently approved unit. Gulf Red Snapper IFQ Background The final rule to implement Amendment 26 to the FMP (71 FR 67447, November 22, 2006) established an IFQ program for the commercial red snapper sector of the Gulf reef fish fishery. One of the requirements of the IFQ program is an advance notification of landing. Currently, an owner or operator of a vessel landing IFQ red snapper is responsible for calling NMFS Office for Law Enforcement
(OLE)at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing and the name of the IFQ dealer where the red snapper are to be received. Reliance on a single notification method, e.g., telephone, has proven to be impractical in some circumstances -e.g., cell phone range is sometimes inadequate. Additional options for complying with the advance notification of landing are needed. Proposed Revisions to the IFQ Advance Notification Requirement This proposed rule would authorize new electronic methods, in addition to the current telephone method, that would be acceptable for complying with the advance notification of landing requirement. Under this proposed rule, authorized methods for contacting NMFS and submitting the report would include calling NMFS Office for Law Enforcement at 1-866-425-7627, completing and submitting to NMFS the advance notification form provided through the VMS unit, or providing the required information to NMFS through the web-based form available on the IFQ website at *ifq.sero.nmfs.noaa.gov* . As new technology becomes available, NMFS would add other authorized methods for complying with the advance notification requirement via appropriate rulemaking. NMFS would list all authorized methods on the IFQ website at *ifq.sero.nmfs.noaa.gov* along with instructions for completing the report. This proposed expansion of allowable methods for advance notification of landing is intended to facilitate compliance and improve monitoring of the fishery. Other Non-substantive Revisions Related to VMS This proposed rule would:
(1)rearrange the codified text in § 622.9(a)(2), relating to VMS requirements for the Gulf reef fish fishery, in a more logical order;
(2)remove the existing power-down exemption option for vessels not making any trip for more than 1 month because this would be covered by the proposed exemption for vessels “in port” for more than 72 consecutive hours; and
(3)clarify that the VMS requirements apply throughout the Gulf of Mexico including the adjacent states, e.g., requirements also apply to vessels with commercial vessel permits for Gulf reef fish that are dry-docked or trailered on land. Classification Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, I have determined that this proposed rule is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this proposed rule. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the IRFA follows. This proposed rule would allow vessels “in port” to send a VMS position report once every 4 hours, rather than every hour, and extend the VMS power-down exemption to vessels that are “in port,” subject to obtaining a letter of exemption and following OLE notification and confirmation procedures, rather than require removal of the vessel from the water (dry-docking) for the exemption. This proposed rule would also allow continued use of a VMS unit that was previously approved for the Gulf reef fish fishery if that unit is subsequently removed from the approved list. This grandfathering is limited to the life of the grandfathered VMS unit. Once the grandfathered unit is no longer functional, a VMS unit from the approved list is required. Finally, this proposed rule would broaden allowable methods for advance notification of landing in the commercial red snapper fishery. The objectives of this proposed rule are to address an unanticipated technological problem in the VMS requirements for the Gulf of Mexico commercial reef fish fishery that could result in power drainage of vessels “in port” that lack an external power source, include a grandfather clause in the VMS requirements, and expand the methods for advance notification of landing in the commercial red snapper fishery. The Magnuson-Stevens Act provides the legal basis for the rule. The VMS components of the proposed rule would apply to all vessels permitted to operate in the Gulf of Mexico commercial reef fish fishery. Some for-hire vessels also participate in the commercial reef fish fishery, and this sector is included in the following description of affected entities. The advance notification of landing component of the proposed rule would apply to only that subset of the commercial reef fish fishery vessels that also operate in the commercial red snapper fishery. The Small Business Administration
(SBA)has established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined average annual total receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all affiliated operations worldwide. For for-hire operations, the other qualifiers apply and the annual receipts threshold is $6.5 million (NAICS code 713990, recreational industries). Approximately 1,145 vessels are estimated to be permitted to operate in the Gulf of Mexico commercial reef fish fishery. Over the period 2001-2003, an average of 1,050 vessels per year landed an average total of 19.2 million lb (8.7 million kg) gutted weight
(GW)of Gulf reef fish per year with an ex-vessel value of $50.75 million (2006 dollars). Median annual reef fish landings were 5,705 lb (2,588 kg) per vessel. The median vessel took 12 trips per year, spent approximately 31 days at sea annually, and derived approximately 98 percent of its gross revenues from reef fish harvests. Median gross revenues from all species harvested by these vessels, which includes non-reef fish species, were approximately $19,000 (2006 dollars) for each of the 3 years. The commercial reef fish fishery is conducted using two primary gears, longlines and hand or vertical lines. Within the longline fleet, over the same period (2001-2003), an average of 166 vessels per year landed an average total of approximately 6.5 million lb (3.0 million kg) GW of reef fish per year with an ex-vessel value of approximately $17.64 million (2006 dollars). The median vessel took 14 trips per year, spent 113-121 days at sea annually, and derived approximately 97 percent of its gross revenues from reef fish harvests. Median gross revenues per year from all species harvested by these vessels ranged from approximately $109,000 (2006 dollars) to $115,000 (2006 dollars). Within the vertical-line fleet, over the same period (2001-2003), an average of 899 vessels per year landed an average total of approximately 11.6 million lb (5.3 million kg) GW of reef fish per year with an ex-vessel value of approximately $30.44 million (2006 dollars). The median vessel took 14 trips per year, spent 33-35 days at sea annually, and derived approximately 97 percent of its gross revenues from reef fish harvests. Median gross revenues from all species harvested by these vessels were approximately $15,000 (2006 dollars) for each of the 3 years. Alternative estimates derived from 1994 fishery data of the performance of vessels in this fishery show annual average gross and net revenues per vessel range from approximately $27,000 (2006 dollars) in gross revenues and $5,000 (2006 dollars) in net revenues for low-volume handline vessels to approximately $133,000 (2006 dollars) ($25,000 net) for high-volume longline vessels. These values are comparable to the more recent estimates of ex-vessel revenues and provide insight to net revenue estimates, which are not available from the more recent data. Vessels that operate in the commercial red snapper fishery are part of the commercial reef fish fishery and are included in the description of the reef fish vessels provided above. With the implementation of the two-class license system in the red snapper fishery in 1998, 764 vessels were licensed to participate in the commercial red snapper fishery, though only 616 vessels recorded landings through 2004. Summary statistics specific to the red snapper fishery comparable to those of the reef fish fishery as a whole are not available. Further, substantial changes in the composition and characteristics of the commercial red snapper fleet are anticipated to develop under the individual fishing quota
(IFQ)program implemented in January 2007. Projections of fleet size under the IFQ program, expected to result from consolidation of quota shares, do not exceed 100 vessels. Total fleet-wide net revenues to owners, captain and crew from all species harvested by vessels operating in the red snapper fishery are estimated to range from approximately $14.5 million (2006 dollars) to approximately $26 million (2006 dollars) under annual total allowable catch
(TAC)levels for harvest from all sectors of 5.0 million lb (2.3 million kg) and 9.12 million lb (4.14 million kg), respectively, of which the commercial fishery is allocated 51 percent of the TAC. Based on these revenue projections, the average net revenue per vessel would range from $145,000 to $260,000 (2006 dollars) if the fleet consolidates to 100 vessels, or $290,000 to $520,000 (2006 dollars) if the fleet consolidates to 50 vessels. Approximately 237 vessels permitted to participate as for-hire vessels (charterboats or headboats) also possess commercial reef fish permits. While these vessels are included in the description of commercial vessels provided above, in general, for-hire vessels would be expected to have different production profiles than vessels that operate exclusively as commercial vessels. Production characteristics likely vary by the extent to which a vessel operated primarily as a commercial vessel or a for-hire vessel. However, information is only available on the for-hire fleet as a whole, and production characteristics for vessels that operate in both commercial fisheries and the for-hire fishery are unknown. On average, charterboats, which charge a fee on a boat-wide basis, generate approximately $82,000 (2006 dollars) in annual revenues and approximately $39,000 in annual operating profits. The average headboat, which charges a fee on the individual passenger
(head)basis, generates approximately $431,000 (2006 dollars) in annual revenues and approximately $361,000 in annual operating profits. Some fleet activity exists in the commercial red snapper fishery and in the commercial finfish fisheries in general, but the extent of such activity is unknown. The maximum number of reef fish permits reported owned by the same entity is six permits. Additional affiliation may exist between permits (and the revenues associated with those permits) and an entity, but cannot be identified using existing data. Given the average economic performance provided above, NMFS determines that all entities operating in the Gulf of Mexico commercial reef fish fishery are, for purposes of this analysis, small business entities. The proposed rule would reduce current electronic reporting requirements when a vessel is “in port” and simplify conditions for power-down exemptions. The requirement for these vessels to have a type-approved VMS unit would remain, and the operation of these units does not require specialized skill. The email notification requirements and power-down exemption application procedures would remain unchanged and do not require special skills. The expansion of landing notification methods would encompass other electronic means. The commercial red snapper IFQ program was designed around and requires an electronic environment in order to set up accounts and manage transactions. Therefore, the new methods are unlikely to require new or special skills by fishery participants. Further, no single method would be required, such that a participant could select the method that best fits his skills and circumstances. No duplicative, overlapping, or conflicting Federal rules have been identified. All Gulf of Mexico commercial reef fish permitted vessels would be affected by the proposed rule. Because all said entities have been determined for the purpose of this analysis to be small business entities, it is determined that this proposed rule would be expected to affect a substantial number of small entities. Because all entities that would be affected by this proposed rule have been determined to be small business entities, the issue of disproportionality of impacts between large and small entities does not arise. No direct or indirect adverse economic effects on any affected entities are expected to occur as a result of this proposed rule. Therefore, no reductions in profitability for any entities would be expected. The proposed rule would reduce the frequency with which the required VMS units would be required to send an electronic location signal when vessels are “in port” and not actively fishing. This would be expected to reduce the power requirements for vessel operation, reducing the likelihood of battery drainage and compromised vessel operation and safety. The proposed rule would also expand qualification conditions for vessels seeking power-down exemptions to the VMS operating requirements to apply to vessels being “in port” and not require removal of the vessel from the water (dry-docking). This would be expected to further reduce the power requirements and compliance costs to qualify for exemption, because vessels could remain on the water. The grandfather clause allowing the continued use of a VMS unit that is removed from the list of type-approved units would be expected to reduce the need to replace units before the end of their service life, allowing vessels to receive the full economic benefits of their units. Finally, expanding the methods that vessels in the commercial red snapper fishery can use to satisfy the advance landing notification requirements would be expected to reduce the likelihood that unloading and sale of their harvests would be delayed, thereby avoiding the costs of such delay and increasing the profitability of their operation. The alternative considered to the proposed rule is the status quo, or no action. The status quo would maintain current VMS program requirements, maintain the current unanticipated technological problem associated with potential power drainage, require vessels to replace VMS units that were previously type-approved but are removed from the approved list, and limit vessels in the commercial red snapper fishery to a single method of satisfying the advance landing notification requirement. Thus, the status quo would not achieve the NMFS objectives. This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA)that have been approved by OMB under Control Number 0648-0544 for VMS reporting requirements and Control Number 0648-0551 for Gulf red snapper IFQ reporting requirements. Public reporting for the VMS-related requirements is estimated to average 24 seconds for transmission of position reports and 10 minutes for submission of requests for power-down exemptions. Public reporting for the IFQ-related advance notification of landing is estimated to average 3 minutes. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data collection, including suggestions for reducing burden hours, to NMFS (see ADDRESSES ) and by email to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects in 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. Dated: July 31, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 622 is proposed to be amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 622.9, paragraph (a)(2) is revised to read as follows: § 622.9 Vessel monitoring systems (VMSs).
(a)* * *
(2)*Gulf reef fish* . The VMS requirements of this paragraph (a)(2) apply throughout the Gulf of Mexico and adjacent states.
(i)*General VMS requirement* . An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit even when under charter, must ensure that such vessel has an operating VMS approved by NMFS for use in the Gulf reef fish fishery on board at all times, regardless of whether the vessel is underway, unless exempted by NMFS under the power down exemptions specified in paragraph (a)(2)(iv) of this section. These regulatory requirements are also set forth in the NOAA Enforcement Vessel Monitoring System Requirements for the Reef Fish Fishery of the Gulf of Mexico which is available from NMFS, Office for Law Enforcement (OLE), Southeast Region, 263 13th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. NMFS OLE maintains a current list of approved VMS units and communication providers which is available from the VMS Support Center, NMFS OLE, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910 or by calling toll free 888-219-9228. If a VMS unit approved for the Gulf reef fish fishery is removed from the approved list by NMFS OLE, a vessel owner who purchased and installed such a VMS unit prior to its removal from the approved list will be considered to be in compliance with the requirement to have an approved unit, unless otherwise notified by NMFS OLE. At the end of a VMS unit's service life, it must be replaced with a currently approved unit for the fishery.
(ii)*Hourly reporting requirement* . An owner or operator of a vessel subject to the requirements of paragraph (a)(2) of this section must ensure that the required VMS unit transmits a signal indicating the vessel's accurate position at least once an hour, 24 hours a day every day unless exempted under paragraphs (a)(2)(iii) or (iv)of this section.
(iii)*In-port exemption* . While in port, an owner or operator of a vessel with a type-approved VMS unit configured with the 4-hour reporting feature may utilize the 4-hour reporting feature rather than comply with the hourly reporting requirement specified in paragraph (a)(2)(ii) of this section. Once the vessel is no longer in port, the hourly reporting requirement specified in paragraph (a)(2)(ii) of this section applies. For the purposes of paragraph (a)(2) of this section, “in port” means secured at a land-based facility, or moored or anchored after the return to a dock, berth, beach, seawall, or ramp.
(iv)*Power-down exemptions* . An owner or operator of a vessel subject to the requirement to have a VMS operating at all times as specified in paragraph (a)(2)(i) of this section can be exempted from that requirement and may power down the required VMS unit if--
(A)The vessel will be continuously out of the water or in port, as defined in paragraph (a)(2)(iii) of this section, for more than 72 consecutive hours;
(B)The owner or operator of the vessel applies for and obtains a valid letter of exemption from NMFS OLE VMS personnel as specified in the NOAA Enforcement Vessel Monitoring System Requirements for the Reef Fish Fishery of the Gulf of Mexico. This is a one-time requirement. The letter of exemption must be maintained on board the vessel and remains valid for all subsequent power-down requests conducted consistent with the provisions of paragraphs (a)(2)(iv)(C) and
(D)of this section.
(C)Prior to each power down, the owner or operator of the vessel files a report to NMFS OLE VMS program personnel, using the VMS unit's e-mail, that includes the name of the person filing the report, vessel name, vessel U.S. Coast Guard documentation number or state registration number, commercial vessel reef fish permit number, vessel port location during VMS power down, estimated duration of the power down exemption, and reason for power down; and
(D)The owner or operator enters the power-down code through the use of the VMS Declaration form on the terminal and, prior to powering down the VMS, receives an e-mail confirmation of the power-down authorization from NMFS OLE.
(v)*Declaration of fishing trip and gear* . Prior to departure for each trip, a vessel owner or operator must report to NMFS any fishery the vessel will participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. This information may be reported to NMFS using the toll-free number, 888-219-9228, or via an attached VMS terminal. 3. In § 622.16, paragraph (c)(3)(i) is revised to read as follows: § 622.16 Gulf red snapper individual fishing quota
(IFQ)program.
(c)* * *
(3)* * *
(i)*Advance notice of landing* . For the purpose of this paragraph, landing means to arrive at a dock, berth, beach, seawall, or ramp. The owner or operator of a vessel landing IFQ red snapper is responsible for ensuring that NMFS is contacted at least 3 hours, but no more than 12 hours, in advance of landing to report the time and location of landing and the name of the IFQ dealer where the red snapper are to be received. Authorized methods for contacting NMFS and submitting the report include calling NMFS Office for Law Enforcement at 1-866-425-7627, completing and submitting to NMFS the notification form provided through the VMS unit, or providing the required information to NMFS through the web-based form available on the IFQ website at ifq.sero.nmfs.noaa.gov. As new technology becomes available, NMFS will add other authorized methods for complying with the advance notification requirement via appropriate rulemaking. Failure to comply with this advance notice of landing requirement will preclude authorization to complete the landing transaction report required in paragraph (c)(1)(iii) of this section and, thus, will preclude issuance of the required transaction approval code. [FR Doc. E7-15231 Filed 8-3-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 070706268-7275-01] RIN 0648-AV21 Fisheries of the Northeastern United States; Summer Flounder, Scup, and Black Sea Bass Fisheries; Framework Adjustment 7 AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS proposes to implement Framework Adjustment 7 (Framework 7) to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP), developed by the Mid-Atlantic Fishery Management Council (Council). Framework 7 would broaden the FMP stock status determination criteria for summer flounder, scup, and black sea bass, while maintaining objective and measurable criteria for identifying when the FMP stocks are overfished or approaching an overfished condition. The framework action would also establish acceptable categories of peer review for providing new or revised stock status determination criteria for the Council to use in its annual management measures for each species. This action is necessary to ensure that changes or modification to the stock status determination criteria constituting the best available peer reviewed scientific information are accessible for the management of these three species in as timely a manner as is possible. The intended effect of this action is to improve the timeliness and efficiency of incorporating the best available scientific information, consistent with National Standards 1 and 2 of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), into the management processes for the three species covered by the FMP. DATES: Written comments must be received no later than 5 p.m. local time on September 5, 2007. ADDRESSES: You may submit comments by any of the following methods: • E-mail: *FSB.framework7@noaa.gov* . Include in the subject line the following identifier: “Comments on FSB Framework Adjustment 7.” • Federal e-rulemaking portal: *http://www.regulations.gov* • Mail: Patricia A. Kurkul, Regional Administrator, NMFS, Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. Mark the outside of the envelope: “Comments on FSB Framework Adjustment 7.” • Fax:
(978)281-9135 Copies of Framework Adjustment 7 are available from Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council, Room 2115, Federal Building, 300 South New Street, Dover, DE 19901-6790. The framework document is also accessible via the Internet at *http://www.nero.noaa.gov* . FOR FURTHER INFORMATION CONTACT: Michael Ruccio, Fishery Policy Analyst,
(978)281-9104. SUPPLEMENTARY INFORMATION: Background The current stock status determination criteria for these three species are found in Amendment 12 to the FMP. To modify or replace these stock status determination criteria, the Council must enact a framework adjustment or an amendment to the FMP. The regulations at §§ 648.100, 648.120, and 648.140 outline the respective annual management processes for summer flounder ( *Paralichthys dentatus* ), scup ( *Stenotomus chrysops* ), and black sea bass ( *Centropristas striata* ). Stock assessment information is updated annually as part of the management process that is used to derive annual catch limits (e.g., Total Allowable Landings (TAL)). In addition, assessments for these three stocks undergo periodic formal scientific peer review as part of the Northeast Fisheries Science Center's (NEFSC) Stock Assessment Workshop
(SAW)and Stock Assessment Review Committee
(SARC)process. These and other periodic formal peer reviews conducted for these stocks may result in recommendations to revise or use different stock status determination criteria as different or new approaches are applied to previously existing data, or to new, previously unexamined data. These recommendations can be incorporated into the management scheme through a framework adjustment or amendment to the FMP. Given the time necessary to develop FMP framework adjustments and amendments, it is likely that, should such new stock status determination criteria result from a formal SAW/SARC peer review, the new criteria would not be available for the Council's use for one or more annual management review cycles (i.e., a 1- to 2-yr delay). In addition, groups outside the NEFSC, including but not limited to the Council, the Atlantic States Marine Fisheries Commission (Commission), academic institutions, and other interested parties have periodically contracted with outside parties or conducted in-house formal peer reviews of the stock status determination criteria for these species. In such instances, it has not been clear how the results of these independently conducted peer reviews should be viewed by the Council in regards to National Standard 2 of the Magnuson-Stevens Act, which specifies that management decisions shall be based upon the best scientific information available. Furthermore, there have been instances where the results of scientific peer review conducted by any of the aforementioned groups were not clear. Peer review panelists may have disagreed on results and presented a majority and minority opinion; results may have lacked specific recommendations or had insufficient clarity to utilize the information provided in the annual management process; or, in some instances, the results of a peer review may have been to reject, for management purposes, changes proposed to the existing stock status determination criteria. In such situations, the Council has been left to decide what information then constituted the best available information. In response, the Council has developed and submitted for review by the Secretary of Commerce, Framework 7 to the FMP. This framework, if adopted, would enact the following actions, designed to improve the time frame in which peer reviewed information can be utilized in the management process, as well as providing guidance on peer review standards and how to move forward in the management process when peer review results are not clear. The principal actions proposed by Framework 7 are to: 1. Redefine, in more general terms, while maintaining objective and measurable criteria, the stock status determination criteria for each species; 2. Define what constitutes an acceptable level of peer review; and 3. Provide guidance on how the Council may engage its Scientific and Statistical Committee
(SSC)to conduct additional review of information when approved peer review processes fail to provide a consensus recommendation or clear guidance for management decisions. These changes, proposed in Framework 7, are discussed in detail in the following sections. Redefined Stock Status Determination Criteria Framework 7 would redefine the stock status determination criteria for each of the three species in the FMP. The maximum fishing mortality rate
(F)threshold for each of the species in the FMP is defined as F Maximum Sustainable Yield
(MSY)(or a reasonable proxy thereof) as a function of productive capacity, and based upon the best scientific information, consistent with National Standards 1 and 2. Specifically, F MSY is the fishing mortality rate or level associated with the relevant MSY level of each stock. The maximum fishing mortality rate threshold (F MSY ), or a reasonable proxy thereof, may be defined as a function of (but not limited to): total stock biomass, spawning stock biomass, or total egg production; and may include males, females, both, or combinations and ratios thereof, that provide the best measure of productive capacity for each of the species managed under the FMP. Exceeding the established fishing mortality rate threshold constitutes overfishing. The minimum stock size threshold for each of the species in the FMP is defined as 1/2 Biomass
(B)MSY (or a reasonable proxy thereof) as a function of productive capacity, and based upon the best scientific information, consistent with National Standards 1 and 2. The minimum stock size threshold (1/2 B MSY ) or a reasonable proxy may be defined as (but not limited to): total stock biomass, spawning stock biomass, or total egg production; and may include males, females, both, or combinations and ratios thereof, that provide the best measure of productive capacity for each of the species managed under the FMP. The minimum stock size threshold is the level of productive capacity associated with the relevant 1/2 B MSY level. Should the measure of productive capacity for the stock or stock complex fall below this minimum threshold, the stock or stock complex is considered overfished. The target for rebuilding is specified as B MSY (or reasonable proxy thereof) at the level of productive capacity associated with the relevant MSY level, under the same definition of productive capacity as specified for the minimum stock size threshold. Under Framework 7, the stock status determination criteria are proposed to be made more general by removing specific references to how minimum stock size threshold and biomass are calculated. By making the stock status determination criteria more general the results of peer reviewed best available science could be more readily adopted through the annual specification setting process. For example, in 2006, the NMFS Office of Science and Technology convened a peer review panel to provide scientific advice on the summer flounder stock. The results of this review, contained in the Summer Flounder Assessment and Biological Reference Point Update for 2006, recommended that spawning stock biomass be utilized as a means for assessing the status of the summer flounder stock. This recommendation was a change from the existing stock status definitions for summer flounder contained in Amendment 12, which use total stock biomass. If Framework 7 is approved and implemented, the Council would be able to utilize the recommendations of the 2006 summer flounder peer review in the management (i.e., specification setting) process as the best available scientific information. The existing Amendment 12 stock status determination criteria for scup and black sea bass would remain unchanged until such time that recommendations for changes or modifications are recommended by a formal peer review. For all three species, the Council would still provide specific definitions for the stock status determination criteria in documents supporting annual management measures, future framework adjustments, and amendments including, where necessary, information on changes to the definitions. Peer Review Standards While the NEFSC SAW/SARC process remains the primary process utilized in the Northeast Region to develop scientific stock assessment advice, including stock status determination criteria for federally managed species, Framework 7 proposes several additional scientific review bodies and processes that would constitute an acceptable peer review level to develop scientific stock assessment advice for the three species stock status determination criteria. Guidance on Unclear Scientific Advice Resulting From Peer Review In many formal peer reviews, the terms of reference provided in advance of the review instruct the reviewers to formulate specific responses on the adequacy of information and to provide detailed advice on how that information may be used for fishery management purposes. As such, most stock assessment peer reviews result in clear recommendations on stock status determination criteria for use in the management of these three stocks. However, there are occasional peer review results where panelists disagree and no consensus recommendation is made regarding the information. The terms of reference may not be followed and no recommendations for the suitability of the information for management purposes may be made. In such instances, it is unclear what then constitutes the best available information for management use. Framework 7 proposes that, when clear consensus recommendations are made by any of the acceptable peer review groups, the information is clearly the best available and may be utilized by the Council in the management process for these three species. Similarly, when the consensus results of a peer review are to reject proposed changes to the stock assessment methods or the stock status determination criteria, Framework 7 proposes that the previous information on record would still continue to constitute the best available information and should be used in the management process. When peer review recommendations lack consensus, are unclear, or do not make recommendations on how the information is to be used in the management process, Framework 7 proposes that the Council engage its SSC or a subset of the SSC with appropriate stock assessment expertise, to review the information provided by the peer review group. The SSC would then seek to clarify the information and provide advice to the Council to either modify, change, or retain the existing stock status determination definitions as the best available information for use in the development of management measures. The process of how the Council utilizes its SSC may change in the future. The 2006 reauthorization of the Magnuson-Stevens Act requires each Council's SSC to provide ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch, maximum sustained yield, achieving rebuilding targets, etc. Framework 7 does not contemplate how the Council may modify its management process to satisfy this requirement of the reauthorized Magnuson-Stevens Act, as guidance for so doing is still being developed by NMFS and the Council. Framework 7 does not bring this FMP into compliance with the new Magnuson-Stevens Act requirements, nor does it conflict with those requirements as it addresses a separate issue. Once appropriate guidance has been developed for complying with the new Magnuson-Stevens Act requirements, the Council's standard operating procedures and/or an amendment to the FMP may be enacted to clarify how the SSC will provide scientific advice for management decisions. Framework 7 will continue to pertain to the SSC's function in clarifying peer reviews on stock status determination criteria only. Under Framework 7, the primary peer review mechanism for northeast region stock assessments will remain the established NEFSC SAW/SARC process. The Council's SSC would only be utilized in the specific instances as previously outlined within the preamble of this proposed rule (see Guidance on Unclear Scientific Advice Resulting from Peer Review section). Both such peer review processes are consistent with the Office of Management and Budget's Information Quality Bulletin for Peer Review. The measures outlined above are the only changes proposed by the Council in Framework 7. The no action alternative examined by the Council is to maintain the status quo regarding the stock status determination criteria, which would require a framework adjustment or amendment to the FMP to effect changes to the definitions in Amendment 12, would leave the standards for peer review undefined, and would not specify how the SSC may be used to clarify ambiguous results of scientific peer reviews for these three stocks. Classification NMFS has determined that this proposed rule is consistent with the FMP and has preliminarily determined that the rule is consistent with the Magnuson-Stevens Act and other applicable laws. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. The Regional Administrator has determined that this proposed rule is an administrative framework adjustment to the FMP and is therefore categorically excluded from the requirement to prepare an Environmental Impact Statement or equivalent document under the National Environmental Policy Act. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This proposed rule deals only with how the best available, peer reviewed scientific information can be incorporated more quickly and efficiently into the Council's process for crafting management measures for the three species under the FMP. This is achieved by broadening the descriptions of the stock status determination criteria in the FMP so that updated and peer reviewed information can be more readily adopted for use in the management process. The proposed change is to how the stock status determination criteria are defined and does not propose any change to the existing determination criteria. Additionally, the framework identifies acceptable levels of peer review that must be satisfied before new or revised information is accepted as the best available science. These are administrative changes to the FMP that serve to improve the quality of data used in management decisions, consistent with National Standards 1 and 2 of the Magnuson-Stevens Act. As such, the rule will not have significant direct or indirect economic impacts on small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. Authority: 16 U.S.C. 1801 *et seq.* Dated: July 31, 2007. John Oliver, Deputy Assistant Administrator for Operations, National Marine Fisheries Service. [FR Doc. E7-15211 Filed 8-3-07; 8:45 am] BILLING CODE 3510-22-S 72 150 Monday, August 6, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Siskiyou County Resource Advisory Committee AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The siskiyou County Resource Advisory Committee
(RAC)will meet in Yreka, California, August 20, 2007. The meeting will include routine business and a presentation on the Community Wildfire Protection Plan by the Fire Safe Council of Siskiyou County. DATES: The meeting will be held August 20, 2007, from 4 p.m. until 5:30 p.m. ADDRESSES: The meeting will be held at the Yreka High School Library, Preece Way, Yreka California. FOR FURTHER INFORMATION CONTACT: Bob Talley, Forest RAC coordinator, Klamath National Forest,
(530)841-4423 or electronically at *rtalley@fs.fed.us.* SUPPLEMENTARY INFORMATION: The meeting is open to the public. Public comment opportunity will be provided and individuals will have the opportunity to address the Committee at that time. Dated: July 30, 2007. Margaret J. Boland, Designated Federal Official. [FR Doc. 07-3825 Filed 8-3-07; 8:45 am]
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U.S. Code
- Records maintained on individuals§ 552a
- Avoidance of duplicative or unnecessary analyses§ 605
- Purposes§ 3501
- Energy conservation policies and practices§ 6362
- Definitions§ 101
- Departmental regulations§ 301
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Short title§ 1461
- Unfair or deceptive acts or practices rulemaking proceedings§ 57a
- Administrative provisions§ 1462a
- Definitions§ 1462
- Unfair methods of competition unlawful; prevention by Commission§ 45
- Termination of status as insured depository institution§ 1818
- Federal Trade Commission established; membership; vacancies; seal§ 41
- Federal savings associations§ 1464
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- Repealed. Pub. L. 111–203, title VI, § 604(c)(2), July 21, 2010, 124 Stat. 1601§ 1848a
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35 references not yet in our index
- 6 CFR 5
- Pub. L. 104-4
- 109 Stat. 48
- 42 USC 4321-4347
- Pub. L. 94-163
- Pub. L. 107-296
- 116 Stat. 2135
- 10 CFR 2
- 12 CFR 535
- 15 USC 41-58
- 12 CFR 563.27
- 12 CFR 227
- 12 CFR 706
- 12 CFR 559.3(h)(1)
- 12 CFR 535.1(b)
- 12 CFR 535.5
- Pub. L. 106-102
- 12 CFR 559.3(o)(1)
- 12 CFR 528
- 12 CFR 528.2
- 12 CFR 528.6
- 12 CFR 203.5(c)(1)
- 12 CFR 30
- 12 CFR 1700.1
- Pub. L. 102-550
- 20 CFR 81.16(c)(12)
- 16 CFR 238
- 16 CFR 251
- 16 CFR 233
- 16 CFR 239
- 16 CFR 255
- 14 CFR 39
- 40 CFR 52
- 50 CFR 622
- 50 CFR 648
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cites case law
Proposed Rules
Notice of proposed rulemaking
Cite6 CFR 5
Pub. L.Pub. L. 104-4
Stat.109 Stat. 48
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