[Federal Register Volume 71, Number 210 (Tuesday, October 31, 2006)]
[Proposed Rules]
[Pages 63738-63749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18285]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 512
Docket No. NHTSA-06-26140; Notice 1
RIN 2127-AJ95
Confidential Business Information
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: This notice addresses the confidentiality of certain
information that manufacturers of motor vehicles and motor vehicle
equipment submit to NHTSA pursuant to the Early Warning Reporting (EWR)
rule. The agency is proposing to create class determinations, based on
Exemption 4 of the Freedom of Information Act (FOIA), treating certain
categories of EWR information as confidential, namely production
numbers (excluding light vehicles), consumer complaints, paid warranty
claims, and field reports. In addition, for EWR reports on deaths and
injuries, NHTSA is proposing to create a class determination based on
FOIA Exemption 6 that the last six (6) characters of the vehicle
identification number (VIN) are confidential. Finally, the agency is
also proposing to clarify its Confidential Business Information rule
with regard to confidentiality markings in submissions in electronic
media.
DATES: Comments on the proposal are due January 2, 2007.
See the SUPPLEMENTARY INFORMATION portion of this document for
DOT's Privacy Act Statement regarding documents submitted to the
agency's dockets.
ADDRESSES: You may submit comments by any of the following methods:
Web site: <http://dms.dot.gov. Follow the
instructions for submitting comments on the DOT electronic docket site.
Fax: 1-202-493-2251.
Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590.
Hand Delivery: Room PL-401 on the plaza level of the
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Federal eRulemaking Portal: Go to <http://www.regulations.gov. Follow the online instructions for
submitting comments.
[[Page 63739]]
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Request for
Comments heading of the Supplementary Information section of this
document. Note that all comments received will be posted without change
to <http://dms.dot.gov, including any personal information
provided. Please see the Privacy Act heading under Rulemaking Analyses
and Notices.
Docket: For access to the docket to read background documents or
comments received, go to <http://dms.dot.gov at any time or
to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Michael Kido, Office of Chief Counsel,
NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 400 Seventh
Street, SW., Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Information Submissions Before and After the EWR Rule Became
Effective
A. Pre-TREAD Act Transmissions of Information to NHTSA
B. The Early Warning Reporting Requirements
C. Manufacturer Submissions of EWR Information
III. The Proposed Rule on the Confidentiality of EWR Information
A. Class Determinations Based on FOIA Exemption 4
1. Basis for Exemptions
2. Proposed Class Determinations on the Confidentiality of EWR
Data
a. Production Numbers
b. Consumer Complaints
c. Warranty Claims
d. Field Reports
e. Common Green Tire Identifiers
f. Other Issues To Be Considered
B. EWR Class Determination Based on FOIA Exemption 6
IV. Exemption 3
V. Other EWR Data
VI. Identifying Confidential Information Located in Electronic Files
VII. Request for Comments
VIII. Privacy Act Statement
IX. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act
C. National Environmental Policy Act
D. Executive Order 13132 (Federalism)
E. Unfunded Mandate Reform Act
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
H. Executive Order 13045
I. Regulation Identifier Number (RIN)
I. Background
In 1966, the Congress enacted the National Traffic and Motor
Vehicle Safety Act (Safety Act), for the purpose of reducing traffic
accidents and deaths and injuries to persons resulting from traffic
accidents. 49 U.S.C. 30101.\1\ Since it was amended in 1974,\2\ the
Safety Act has contained a series of provisions that address motor
vehicles and motor vehicle equipment that contain a potential or actual
defect that is related to motor vehicle safety.
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\1\ Pub. L. No. 89-563, 80 Stat. 718. This preamble will use the
current citations to the United States Code. In 1994, the Safety
Act, as amended, was repealed, reenacted, and recodified without
material change as part of the recodification of Title 49 of the
United States Code. See Pub. L. No. 103-272, 108 Stat. 745, 1379,
1385 (1994) (repealing); id. at 745, 941-73 (1994) (reenacting and
recodifying without substantive changes).
\2\ Pub. L. No. 93-492, 88 Stat. 1470 (1974).
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First, the Act requires a manufacturer to notify NHTSA and the
vehicle or equipment owners if it learns of a defect and decides in
good faith that the defect is related to motor vehicle safety. 49
U.S.C. 30118(c). This duty is independent of any action by NHTSA.\3\
Ordinarily, a manufacturer's notice is followed by the manufacturer's
provision of a free remedy to owners of defective vehicles and
equipment. See 49 U.S.C. 30120. Collectively, the manufacturer's notice
and remedy are known as a recall.
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\3\ United States v. General Motors Corp., 574 F. Supp. 1047,
1049 (D.D.C. 1983).
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Second, Congress provided NHTSA with considerable investigative and
enforcement authority. The Safety Act authorizes NHTSA to conduct
investigations and to require manufacturers to submit reports to enable
the agency to determine compliance with the statute. 49 U.S.C.
30166(b), (e). In addition, NHTSA may initiate administrative
enforcement proceedings to decide whether a motor vehicle or motor
vehicle equipment contains a safety-related defect or does not comply
with applicable standards. An investigation may culminate in NHTSA's
order to the manufacturer to provide notification of a safety-related
defect or a noncompliance to owners of the vehicle or equipment. 49
U.S.C. 30118(a)-(b).
As a practical matter, if a manufacturer has not submitted a notice
of a safety-related defect to NHTSA and if the agency has not received
information that provides a sufficient basis for the opening of an
investigation, it has been unlikely that NHTSA would investigate a
potential problem. This practical limitation on NHTSA's investigations
manifested itself in 2000. Under the limited level of reporting then
required, the agency lacked sufficient information to identify defects
in Firestone tires mounted on Ford Explorers.\4\ Numerous fatalities
occurred before NHTSA opened an investigation and Firestone conducted
recalls.
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\4\ Background information on this matter is available through
NHTSA's defects investigation Web site at http://www-odi.nhtsa.dot.gov/cars/problems/defect/defectsearch.cfm. Enter
``EA00023'' in the ``NHTSA Action Number'' box and click on
``search''.
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On November 1, 2000, Congress enacted the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act. Pub. L. No.
106-414, 114 Stat. 1800. The TREAD Act added provisions to the Safety
Act that expanded the scope of the information manufacturers submit to
NHTSA prior to a manufacturer-initiated recall. In relevant part, the
TREAD Act required the Secretary of Transportation to publish a rule
setting out the early warning reporting (EWR) requirements to enhance
the agency's ability to carry out the Act. 49 U.S.C. 30166(m). In
general, the TREAD Act authorized the agency to require manufacturers
to submit information that may assist in the early identification of
defects related to motor vehicle safety. Id.
In July 2002, NHTSA promulgated the EWR rule. 67 FR 45822 (July 10,
2002).\5\ Generally, the EWR rule required certain manufacturers of
motor vehicles (e.g., automobiles and other light vehicles, trucks,
buses, motorcycles, and trailers) and motor vehicle equipment (e.g.,
tires and child restraints) to submit data regarding production numbers
(cumulative total vehicles or equipment manufactured annually),
incidents involving death or injury based on claims and notices,
property damage claims, consumer complaints, warranty claims paid, and
field reports (collectively ``early warning data'') on a quarterly
basis. See 49 CFR 579.21-26. The information is submitted
electronically to the agency in a standardized format.\6\
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\5\ Thereafter, NHTSA published amendments to the EWR rule. As
used herein, the references to the EWR rule are to the rule as
amended. The reader should note that the discussion of the EWR rule
in this notice is a summary. The full text of the rule and
associated Federal Register notices should be consulted for a full
description.
\6\ Subsequently, in response to petitions for reconsideration,
the rule was amended but these amendments are not germane to the
rulemaking at hand.
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The EWR rule did not address the confidentiality of EWR data, but
noted that this issue would be considered as
[[Page 63740]]
part of the proposed amendments to NHTSA's confidential business
information rule. See 67 FR at 45866, n.6. The agency addressed the
confidentiality of EWR data in its July 2003 final rule on Confidential
Business Information (CBI) rule. 49 CFR part 512, 68 FR 44209 (July 28,
2003). In addition to establishing revised general requirements
governing claims of confidentiality and NHTSA rulings on these claims,
the CBI rule addressed the confidentiality of EWR data. The CBI rule
established a new Appendix C setting forth class determinations
treating EWR information on production numbers (excluding light
vehicles), consumer complaints, warranty claims, and field reports as
confidential. 49 CFR part 512 App. C. Other EWR data were not
specifically covered by the CBI rule. The agency based these class
determinations on the substantial competitive harm and impairment
standards of Freedom of Information Act (FOIA) Exemption 4. See 5
U.S.C. 552(b)(4); 49 CFR part 512 App. C.
In April 2004, NHTSA responded to petitions for reconsideration of
the July 2003 CBI rule. 69 FR 21409 (April 21, 2004). The agency
amended the rule by adding two class determinations to Appendix C based
on FOIA Exemptions 4 and 6. One class determination, based on Exemption
4, covered common green tire identifiers submitted by tire
manufacturers under 49 CFR 579.26(d).\7\ The Exemption 6 class
determination covered the last six (6) characters of vehicle
identification numbers (VINs) contained in EWR death and injury reports
submitted to NHTSA. See e.g., 49 CFR 579.21(b)(2).
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\7\ The term ``common green tires'' refers to ``tires that are
produced to the same internal specifications but that have, or may
have, different external characteristics and may be sold under
different tire line names.'' 49 CFR Sec. 579.4.
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Public Citizen challenged the legality of Appendix C to 49 CFR part
512. In a March 31, 2006 decision, the United States District Court for
the District of Columbia ruled that NHTSA had the authority to
promulgate the rule making categorical confidentiality determinations
for classes of EWR data. Public Citizen, Inc. v. Mineta, 427 F. Supp.
2d 7, 12-14 (D.D.C. 2006). The District Court also concluded, however,
that NHTSA had not provided adequate notice and opportunity to comment
on those determinations at the time of the proposed rule, id. at 14-17.
The Court remanded the matter to NHTSA but did not address the parties'
other claims. Id. Thereafter, intervenor Rubber Manufacturers
Association (RMA) filed a motion to amend the judgment to address its
claim that the disclosure of EWR data was precluded by a specific
disclosure provision in the TREAD Act, 49 U.S.C. 30166(m)(4)(C).\8\ RMA
asserted that this provision met the requirements of FOIA Exemption 3,
which allows the withholding of information prohibited from disclosure
by another statute. 5 U.S.C. 552(b)(3).
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\8\ In reference to information provided by manufacturers
pursuant to the EWR rule, 49 U.S.C. Sec. 30166(m)(4)(C) states:
``Disclosure. None of the information collected pursuant to the
final rule promulgated under paragraph (1) [the EWR rule] shall be
disclosed pursuant to section 30167(b) unless the Secretary
determines the disclosure of such information will assist in
carrying out sections 30117(b) and 30118 through 30121.''
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In a supplemental memorandum opinion filed on July 31, 2006, the
Court accepted RMA's argument that it should consider the Exemption 3
claim, but held that the TREAD Act's disclosure provision was not an
Exemption 3 statute. See Public Citizen, Inc. v. Mineta, 444 F. Supp.
2d 12 (D.D.C. 2006). On August 24, 2006, RMA filed a motion seeking
either a judgment under Federal Rule of Civil Procedure 54(b) or
certification of interlocutory appeal under 28 U.S.C. 1292(b) of the
District Court's decision regarding Exemption 3. On September 5, 2006,
the District Court granted RMA's motion. On September 28, 2006, RMA
filed a Notice of Appeal of the Judgment of July 31, 2006 and
associated orders.
In light of the District Court's decisions, NHTSA is proposing a
rule to address the confidentiality of EWR information through specific
class determinations based on FOIA Exemptions 4 and 6. Our proposal,
which sets forth determinations largely similar to our prior
determinations, addresses the District Court's notice and comment
concerns.
II. Information Submissions Before and After the EWR Rule Became
Effective
A. Pre-TREAD Act Transmissions of Information to NHTSA
Prior to the enactment of the TREAD Act, NHTSA received information
on potential and actual safety-related defects in motor vehicles
through several primary mechanisms. First, vehicle owners submitted
complaints (also known as vehicle owner questionnaires (VOQs)) \9\ to
NHTSA's Office of Defects Investigation (ODI). These complaints tended
to identify problems consumers had experienced in their vehicles.
Second, manufacturers provided copies of technical service bulletins
and other communications transmitted to more than one manufacturer,
dealer or owner. See 49 U.S.C. 30166(f); 49 CFR 579.5 (2002-2005),
573.8 (1995-2001). Third, manufacturers submitted information to the
agency during investigations of particular vehicles and equipment (such
as tires) undertaken by ODI. Finally, manufacturers submitted reports
that certain motor vehicles and equipment contained safety-related
defects pursuant to 49 CFR part 573 (Defect and Non-Compliance
Responsibility and Reports) after determining that such a defect
exists. See 49 U.S.C. 30118(c).
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\9\ See http://www-odi.nhtsa.dot.gov/ivoq/.
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On average, during the five years preceding the TREAD Act, ODI
conducted approximately 83 investigations of potential safety related
defects per year. On average, 64 of these were first stage
investigations known as Preliminary Evaluations (PEs). The remaining
ones were second-stage investigations--Engineering Analyses (EAs).
During the five (5) years following enactment of the TREAD Act,
these numbers have remained roughly the same, with the agency
conducting approximately 84 investigations annually (66 PEs, 28 EAs).
In most of these investigations, ODI issued information requests to
manufacturers. A review of the submissions received from manufacturers
over a recent one-year period revealed that nearly every PE or EA
submission to the agency involved a request for confidential
treatment.\10\
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\10\ Out of 276 requests for confidential treatment we received
from July 1, 2005 through June 30, 2006, approximately 30% (83)
involved requests related to a PE (52) or EA (31). These numbers do
not include requests related to other enforcement-related
activities, such as compliance investigations or recall-related
queries.
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B. The Early Warning Reporting Requirements
The TREAD Act dramatically changed the nature and amount of
information manufacturers submit to NHTSA. The EWR rule requires
specified manufacturers to submit a broad array of information on each
make and model of vehicle and child seat, and substantial tire line
that they manufacture. The EWR requirements apply mainly to larger
manufacturers of motor vehicles and tires, and all manufacturers of
child restraint systems (see 49 CFR part 579). In general, vehicle
manufacturers who annually produce 500 or more vehicles in a category
must submit quarterly reports with regard to the following categories
of vehicles: light vehicles, medium-heavy vehicles and buses, trailers,
and motorcycles. The reporting information required of these
manufacturers is summarized below:
Production. These manufacturers must report the number
of vehicles, child restraint
[[Page 63741]]
systems, and tires, by make, model, and model (or production) year,
during the reporting period and the prior nine model years (prior
four years for child restraint systems and tires).
Consumer complaints. These manufacturers (other than
tire manufacturers) must report the numbers of consumer complaints
they receive that are related to problems with certain specified
components and systems. Manufacturers of child restraint systems
must report the combined number of such consumer complaints and
warranty claims, as discussed below.
Property damage. These manufacturers (other than child
restraint system manufacturers) must report the numbers of claims
for property damage that are related to alleged problems with
certain specified components and systems, regardless of the amount
of such claims.
Warranty claims information. These manufacturers must
report the number of warranty claims (adjustments for tire
manufacturers), including extended warranty and good will, they pay
that are related to problems with certain specified components and
systems. As noted above, manufacturers of child restraint systems
must combine these with the number of reportable consumer
complaints.
Field reports. These manufacturers (other than tire
manufacturers) must report the total number of field reports they
receive from the manufacturer's employees, representatives, and
dealers, and from fleets, that are related to problems with certain
specified components and systems. In addition, manufacturers must
provide copies of certain field reports received from their
employees, representatives, and fleets, but are not required to
provide copies of reports received from dealers.
Deaths. These manufacturers must report certain
specified information about each incident involving a death that
occurred in the United States that is identified in a claim (as
defined) against and received by the manufacturer. They must also
report information about incidents involving a death in the United
States that is identified in a notice received by the manufacturer
alleging or proving that the death was caused by a possible defect
in the manufacturer's product. Finally, they must report on each
death occurring in a foreign country that is identified in a claim
against the manufacturer involving the manufacturer's product, or
one that is identical or substantially similar to a product that the
manufacturer has offered for sale in the United States.
Injuries. These manufacturers must report certain
specified information about each incident involving an injury that
is identified in a claim against and received by the manufacturer,
or that is identified in a notice received by the manufacturer which
notice alleges or proves that the injury was caused by a possible
defect in the manufacturer's product.
C. Manufacturer Submissions of EWR Information
EWR reporting was phased-in, with the first quarterly EWR reports
submitted on or about December 1, 2003. Field reports (copies of non-
dealer reports) were first submitted on or about July 1, 2004. 68 FR
35145, 35148 (June 11, 2003) (specifying deadline submissions for EWR
reports). Since the EWR rule's data submission requirements began in
December 2003, manufacturers have submitted large amounts of
information. Over 500 manufacturers have regularly submitted reports
and collectively submitted thousands of reports, making the volume of
the incoming data extensive. NHTSA has received reports on more than 8
million consumer complaints, 138 million warranty claims, and nearly 5
million field reports (all aggregated) from light vehicle
manufacturers. Other manufacturers have also provided a large volume of
aggregated data for the agency to analyze: heavy and medium bus
manufacturers--over 246,000 consumer complaints, nearly 7 million
warranty claims, and nearly 245,000 field reports; trailer
manufacturers--nearly 66,000 consumer complaints, over 1.2 million
warranty claims, and over 18,000 field reports; motorcycle
manufacturers--over 35,000 consumer complaints, over 687,000 warranty
claims, and over 91,000 field reports; tire manufacturers--over 1
million warranty claims; and child restraint manufacturers--nearly
43,000 warranty claims and over 7,000 field reports.
III. The Proposed Rule on the Confidentiality of EWR Information
A. Class Determinations Based on FOIA Exemption 4
In view of the Court's decision in Public Citizen, Inc. v. Mineta,
NHTSA is initiating a new rulemaking proceeding and proposing to adopt
class determinations that address the confidential treatment of certain
EWR information. In general, NHTSA is proposing to adopt the class
determinations promulgated in 2003 and 2004.\11\ The new class
determinations we are proposing for EWR data are based on FOIA
Exemption 4 and would be set out in a new Appendix C to 49 CFR part
512, which would read as follows:
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\11\ Minor changes from the 2003 rule, as amended in 2004, are
reflected in this proposed new Appendix C. One change parallels
proposed changes to the EWR rule involving the identification of
product evaluation reports. The proposed changes to the EWR
regulation were published on September 1, 2006. 71 FR 52040. Another
change to Part 512 is the relocation of Appendix C's subparagraph
addressing common green tires.
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Appendix C--Early Warning Reporting Class Determinations
(a) The Chief Counsel has determined that the following
information required to be submitted to the agency under 49 CFR 579
subpart C, will cause substantial competitive harm and will impair
the government's ability to obtain this information in the future if
released:
(1) Reports and data relating to warranty claim information;
(2) Reports and data relating to field reports, including dealer
reports, product evaluation reports, and hard copies of field
reports; and
(3) Reports and data relating to consumer complaints.
(b) In addition, the Chief Counsel has determined that the
following information required to be submitted to the agency under
49 CFR 579, subpart C, will cause substantial competitive harm if
released:
(1) Reports of production numbers for child restraint systems,
tires, and vehicles other than light vehicles, as defined in 49 CFR
579.4(c); and
(2) Lists of common green tire identifiers.
1. Basis for Exemptions
Consistent with our prior approach, the agency proposes creating
categories based on Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Under
Exemption 4, the standard for assessing the confidentiality of required
submissions of information is whether disclosure is likely either to
cause substantial competitive harm to the originating entity or to
impair the government's ability to obtain necessary information in the
future. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765,
770 (D.C. Cir. 1974). Meeting the competitive harm standard requires
that there be ``actual competition and a likelihood of substantial
competitive injury'' from disclosure of the information. CNA v.
Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987). Assessing the effect of
disclosure under the impairment prong requires a ``rough balancing'' of
the extent of impairment and the information's importance against the
public's interest in disclosure. Washington Post v. Dep't of Health and
Human Services, 690 F.2d 252, 269 (D.C. Cir. 1982).
We note that motor vehicle and motor vehicle equipment
manufacturers who are required to submit EWR data operate in a highly
competitive business environment. See http://stats.bls.gov/oco/cg/cgs012.htm (generally describing the nature of the motor vehicle and
parts industry). In light of the highly competitive environment in
which these manufacturers operate, the comprehensive EWR data that they
submit possess commercial value to the submitting manufacturers,
competitors, and others such as suppliers who are interested in these
types of data. These data are standardized and, as discussed above, the
EWR reports contain identical informational elements for
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each regulated manufacturer category under the EWR rule. See 49 CFR
part 579 subpart C. These reports are submitted pursuant to
standardized electronic reporting templates that are used repeatedly
from reporting period to reporting period. Each manufacturer in a
regulatory category reports on the same systems and components and
provides a snapshot of that manufacturer's experience for each of the
standard informational elements.
Further, as we explain below, under the TREAD Act, manufacturers
need only produce that information which they already collect. In light
of this fact, on balance, the disclosure of certain categories of EWR
information (consumer complaints, warranty claims, and field reports)
is more likely to cause manufacturers to scale back their collection
efforts, which would impair the agency's ability to obtain EWR data in
future submissions, than if the information were not disclosed. Without
the collection of comprehensive data by manufacturers, the
effectiveness of the EWR program would be adversely impacted.
Additionally, as reflected by the number of EWR submissions when
compared to the number of confidentiality requests that manufacturers
submit to the agency in the course of defect investigations noted
above, if NHTSA were to attempt to process individualized requests for
confidentiality of individual EWR submissions, the agency would be
overwhelmed. A huge backlog would develop and grow. During the time
that NHTSA was processing these requests for confidentiality, nothing
would be released. The situation would be similar to the substantial
FOIA request backlog experienced at some agencies. Moreover,
submissions would not be released until the individual processing was
completed. The net effect would be to hamper agency efforts to address
these claims for confidential treatment expeditiously and likely divert
resources from other efforts, including pursuing other enforcement
activities. The District Court recognized this possibility when it
ruled that categorical rules that address the confidentiality of EWR
data are necessary ``to allow the agency to administer the EWR program
effectively,'' Public Citizen, 427 F. Supp. 2d at 13, and that the
agency was ``justified in making categorical rules to manage the tasks
assigned to it by Congress under the TREAD Act.'' Id.
In the recent Public Citizen case, the parties submitted briefs on
NHTSA's authority to issue categorical determinations. The court
accepted NHTSA's position that the agency had the authority to do so.
Id.
2. Proposed Class Determinations on the Confidentiality of EWR Data
Based on NHTSA's authority, as recently confirmed in the District
Court's decision, to make categorical class determinations, we are
proposing to create such classes based on Exemption 4 for the EWR data
categories listed below.
a. Production Numbers
The EWR rule requires certain manufacturers to submit the number of
vehicles, tires and child restraint systems, by make, model, and model
(or production) year, produced during the model year of the reporting
period and the prior nine model years (prior four years for child
restraint systems and tires). See 49 CFR 579.21-26.
Production figures for models of motor vehicles, other than light
vehicles, and for tires and child restraints are not publicly
available.\12\ As noted above, NHTSA proposes to include EWR production
figures, other than for light vehicles, in a class determination of
confidentiality based on the competitive harm prong of National Parks.
EWR production data reveal a variety of valuable information, including
a company's production capacity, the sales and market performance of
its individual products,\13\ and the success of its marketing
strategies. This market-related information would be valuable to the
reporting manufacturer's competitors, who commonly want to know how
well products sell, including how well their competitors' products have
been and are selling. The competitors would use the production
information in their own product planning and marketing. For example,
the release of this EWR production information would likely have the
following impacts: (1) Medium-heavy vehicle manufacturers would use a
rival's production information to monitor the competitor's production
capacity (which would reveal that competitor's capacity to manufacture
certain products) and, separately, suppliers would use the information
to gain a competitive advantage over a submitter during pricing
negotiations, in instances such as when they could determine that they
are the sole supplier; (2) bus manufacturers would use production
information to chart the overall market and the strengths and
weaknesses of the reporting entity's business within specific makes and
models; (3) because product plans are based upon an evolution of
production direction and experience, disclosure of motorcycle
production information would expose manufacturers' future plans to
competitors; (4) child restraint manufacturers would use production
data to assess their competitors' production capabilities, sales and
market performance through means otherwise unavailable without
considerable market research expense; and (5) the disclosure of tire
production numbers by brand and size would result in competitive harm
to the manufacturers by revealing specific and critical information
about those companies' sales and marketing strategies. We note that in
the context of individual investigations, the agency has generally
granted confidential treatment to production data on child restraints
and tires submitted to NHTSA but released past light vehicle production
numbers, which, as noted above, are generally available to the public
and have generally not been granted confidential status.
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\12\ The basis for excluding EWR production data on light
vehicles (``any motor vehicle, except a bus, motorcycle, or trailer,
with a gross vehicle weight rating of 10,000 lbs or less,'' 49 CFR
Sec. 579.4) from the proposed class determination on
confidentiality is that those data are publicly available.
Information that is already publicly available cannot be withheld by
an agency under Exemption 4. Niagara Mohawk Power Corp. v. Dep't of
Energy, 169 F.3d 16, 19 (D.C. Cir. 1999). We note that more detailed
production data on light vehicles, such as detailed production
information by engine and transmission combination, is not publicly
available and has been granted confidentiality.
\13\ See, e.g. http://www.claritas.com/claritas/Default.jsp?ci=2&pn=cs_bmwusa.
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b. Consumer Complaints
The EWR rule requires larger volume vehicle manufacturers and all
child restraint manufacturers to submit the number of consumer
complaints received broken out, for each make and model, by specific
categories such as system component, fire and rollover--all of which
are binned by code. 49 CFR 579.4, 579.21-26. Consumer complaints are
defined by the regulation as:
[A] communication of any kind made by a consumer (or other
person) to or with a manufacturer addressed to the company, an
officer thereof or an entity thereof that handles consumer matters,
a manufacturer Web site that receives consumer complaints, a
manufacturer electronic mail system that receives such information
at the corporate level, or that are otherwise received by a unit
within the manufacturer that receives consumer inquiries or
complaints, including telephonic complaints, expressing
dissatisfaction with a product, or relating the unsatisfactory
performance of a product, or any actual or potential defect in a
product, or any event that allegedly was caused by any actual or
potential defect in a product, but
[[Page 63743]]
not including a claim of any kind or a notice involving a fatality
or injury.\14\
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\14\ 49 CFR Sec. 579.4(c).
NHTSA proposes to include EWR consumer complaint data in a class
determination of confidentiality based on both the competitive harm and
impairment prongs of National Parks. The commercial value of consumer
complaint data is well-recognized. Complaint data are a valuable data
source used by companies to help them identify areas of concern,
including product performance, to consumers and provide guidance on
where to allocate their limited resources.\15\ The disclosure of EWR
complaint numbers would provide competitors with aggregated data on the
performance of entire product lines and key, individual systems and/or
components. In view of the competitive value of these data, NHTSA has
tentatively concluded that the release of EWR consumer complaint data
would cause substantial harm to the competitive position of the
manufacturer that collected and reported them.
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\15\ See e.g., John Goodman & Steve Newman, Six Steps to
Integrating Complaint Data into QA Decisions, 36 Quality Progress,
Issue 2 (Feb. 1, 2003) (stressing the importance of complaint data
in helping to identify issues with products and the data's
effectiveness in assisting companies with resource allocation
decisions to address quality assurance issues) and Edward Bond &
Ross Fink, Meeting the Customer Satisfaction Challenge, 43
Industrial Management, Issue 4 (July 1, 2001) (noting the importance
of measuring customer satisfaction, describing customer complaints
as a data source to a company that can create a ``big benefit'' from
small changes, and emphasizing the need for companies to make it
convenient for consumers to complain). Both articles are available
in Docket No. NHTSA-2002-12150, Item No. 65.
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Companies may receive customer input and feedback on product
performance in a variety of ways and establish differing practices for
the receipt of customer complaints, which are taken into account by the
definition of consumer complaint. To obtain these data, companies may,
for example, increase the staff available at their toll-free telephone
numbers or create web-based systems through which consumers can make
complaints instantly by electronic mail. More consumer input channels
increase the robustness of the available data. In addition to providing
valuable information to the company, consumer complaints provide
feedback on product performance that can be valuable to NHTSA in
identifying problems, including potential defects that may point to the
presence (or absence) of a safety problem. The agency seeks to ensure
that it receives as much information as possible to identify possible
defect trends.
Under the early warning reporting provisions of the Safety Act,
however, NHTSA may not require a manufacturer of a motor vehicle or
motor vehicle equipment to maintain or submit records respecting
information not in the possession of the manufacturer. 49 U.S.C.
30166(m)(4)(B). In other words, NHTSA may require manufacturers to
submit reports based on information that they have collected but may
not require manufacturers to collect information not otherwise
collected.
In view of the fact that the quantity and comprehensiveness of the
EWR consumer complaint data depend in substantial part on the
willingness of manufacturers to collect this information through a
broad and multi-input approach, NHTSA does not want to take steps that
discourage the collection efforts. NHTSA is concerned that the routine
disclosure of EWR consumer complaint information would discourage these
efforts, and ultimately reduce the amount of information manufacturers
collect. This would impair our ability to obtain this information in
the future for analysis. It would adversely impact not only the EWR
program as a whole, but a reduction in complaint data would also
significantly impact individual investigations in which ODI routinely
considers and follows up on such data. The disclosure of these data,
however, would be of limited value to the public. Complaint data
frequently involves issues that are not safety-related. On balance, the
importance of the information to the agency's ability to help it
identify potential safety defects and the associated impairment
outweigh the smaller interest in its public disclosure. Thus, the
agency proposes to withhold these data under Exemption 4.
c. Warranty Claims
Under the EWR rule, manufacturers of more than 500 vehicles per
year and tire manufacturers must report warranty claims (warranty
adjustments for tire manufacturers) they paid for specified components
and systems broken down by component, make, model and model year. 49
CFR 579.21-26. Repairs made outside of warranties that are covered by
``good will'' are also reported under warranty claims and warranty
adjustments.\16\ 49 CFR 579.4. Manufacturers of child restraint systems
must combine these data with the number of reportable consumer
complaints. The warranty information is reported on a detailed make/
model basis and categorized with reference to the twenty-two categories
defined in the EWR regulation.
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\16\ These data include ``good will'' repairs that are conducted
and paid for by the manufacturer outside of the warranty. ``Good
will'' means ``the repair or replacement of a motor vehicle or item
of motor vehicle equipment, including labor, paid for by the
manufacturer, at least in part, when the repair or replacement is
not covered under warranty, or under a safety recall reported to
NHTSA under part 573 of this chapter.'' 49 CFR Sec. 579.4.
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NHTSA proposes to include EWR warranty data in a class
determination of confidentiality based on both the competitive harm and
impairment prongs of National Parks. Warranty claims data generally
reflect a repair paid for by a manufacturer under a warranty. The
commercial value of warranty complaint data is well known. Warranty
data are a valuable data source used by companies in identifying
problem trends early in the life of a vehicle or equipment, before the
expiration of the warranty. The EWR warranty data provide
comprehensive, competitively valuable information about the field
experience of components and systems across all makes and models. Many
components and systems are updated over time to incorporate new
technologies or to achieve cost savings. They may be provided by
different suppliers. The manufacturer's warranty experience with
various components and systems is a valuable dataset.\17\ The
disclosure of EWR warranty numbers would provide competitors with
aggregated data on the performance of entire product lines and key,
individual systems and/or components. Competitors would use this
information to assess the in-use performance of parts and systems. It
would be used in purchasing, pricing, and sourcing decisions, all of
which would be likely to have competitive impacts. Accordingly, NHTSA
has tentatively concluded that the release of the EWR warranty data
would cause substantial harm to the competitive position of the
manufacturer that collected and reported them.
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\17\ Published reports illustrate the extent to which the
industry as a whole relies on and uses sensitive warranty
information. For example, GM uses its warranty data to help it
pinpoint problem areas and to help it reduce its warranty costs.
See, e.g., Gregory L. White, GM Takes Tips from CDC to Debug its
Fleet of Cars, Wall St. J., April 8, 1999, at B1 (noting GM's
adaptation of the epidemiological system used by the Centers for
Disease Control and Prevention to warranty issues) and A Message to
Dealers Regarding the Ford Recall of Firestone Wilderness AT Tires
and General Motors Continued Use of Firestone Tires on its Vehicles,
(May 25, 2001) (stating that GM and Firestone tire engineers ``are
on site at GM's tire and wheel laboratory two days a week'' to
``monitor tire warranty data''). Both of these documents are
available in Docket No. NHTSA-2002-12150, Item No. 65.
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Warranties vary in length (e.g., years, miles) and scope (e.g., 3
years/36,000
[[Page 63744]]
miles vs. 4 years/50,000 miles). Other things being equal, we believe
that companies with more generous warranty and good will programs will
have a higher number of warranty claims than those with more limited
policies. The more generous the warranty policies (such as longer
warranty coverage), the more warranty data that will be subject to
disclosure to NHTSA.
Because of the data's commercial value and the manner in which they
can be used, the disclosure of this information would reduce the
willingness of manufacturers to maintain extensive warranty programs
including extended warranties and good will, which could ultimately
reduce the availability of robust warranty information in the future.
ODI would have substantially less information to analyze in
investigating potential defects.\18\ Also consumers would receive fewer
free repairs under warranty programs, which in addition to being
economically disadvantageous, would in some instances adversely affect
motor vehicle safety because vehicles would not be repaired. However,
the EWR information would not be useful to the public in comparing
vehicles or equipment because of the differences in warranty terms and
corporate warranty practices--which would could cause the public to
derive incorrect conclusions from the information. The rough balancing
under the impairment prong weighs in favor of withholding this
information, as the public interest favoring disclosure is small and
the adverse effects accompanying disclosure are substantial. Thus, the
agency proposes to withhold EWR warranty information under Exemption 4.
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\18\ Manufacturers may choose to make available to their
customers warranties of longer duration and broader mileage (e.g., a
company may offer a 5-year/50,000 mile warranty or a 3-year/36,000
mile warranty), making more warranty claims information subject to
disclosure to the agency. DaimlerChrysler, for example, lengthened
its engine warranty period to gain in the competitive market. See,
e.g., Jeff Green, DC Emphasizes Warranty, Bloomberg, Sept. 6, 2002,
available at http://www.theautochannel.com. Not only do warranties
differ by manufacturer, they also differ based on the targeted
market (e.g. luxury v. non-luxury) and on system components and 2003
Manufacturers' Warranties, available at www.enterprise.com. Both
items are docketed in Docket No. NHTSA-2002-12150, Item No. 65.
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d. Field Reports
Field reports are communications from a manufacturer's
representative or dealer about a malfunction or performance problem. 49
CFR 579.4. The EWR rule requires manufacturers of specified vehicles
and child restraints to provide information on field reports and copies
of non-dealer field reports. In general, as in other categories of EWR
data, the field report data are provided by make, model and model year
and, further, by numerous specified systems and components. 49 CFR
579.21-25.
Field reports reflect the in-use experience of a manufacturer's
product, collected by the company at its expense and with the intent of
identifying problems with its products. The nature, quality and
quantity of field reports vary, with reports from some companies
reflecting their pursuit of detailed feedback, and those from others
yielding less information. For others, a field report is more akin to a
technical investigation into a problem detected through warranty,
consumer complaint or other information available to the company.
NHTSA proposes to include EWR field report information in a class
determination of confidentiality based on both the competitive harm and
impairment prongs of National Parks. Field report information would
identify systems and components that have experienced malfunction or
performance issues, in quantitative terms in all products. More
particularly, the field reports would reveal specific problems
associated with particular components and systems. Overall, the
information would reveal aspects of a vehicle's performance (whether
potentially safety-related or not) that a manufacturer deems important
in its commercial efforts. If EWR field report information were
disclosed, the reporting manufacturer's competitors would have access
to comprehensive data involving malfunction or performance issues
covering all products. Such information, if publicly released, would be
of substantial value to competitors, who could avert similar issues or
improve their products without the need to invest in market research,
engineering development, or actual market experience. NHTSA has
tentatively concluded that their release would cause substantial harm
to the competitive position of the manufacturer that collected and
reported them.
Manufacturers' decisions to obtain field reports are discretionary
and practices vary among manufacturers. The disclosure of field report
data would discourage manufacturers from initiating field reports. This
would lead to fewer and less reliable field reports available to the
agency in the future to identify potential safety defects promptly.
Field reports are particularly valuable in identifying areas of
potential concern to manufacturers. Some of these reports have also
been indicative of potential defect trends. Since the agency can
require only that manufacturers submit information about, and copies
of, those field reports that companies choose to prepare and/or obtain,
there is a substantial risk that the agency's ability to obtain this
information in the future would be impaired, which would adversely
affect the program's effectiveness. See 49 U.S.C. 30166(m)(4)(B). By
contrast, the value of these data would be limited to the public. The
technical data and reports of the number of field reports would not
readily identify safety-related issues. As such, the agency does not
believe that these data and numbers would contain information that
would be informative to the public with regard to vehicle safety. In
balancing the interests in disclosure, the agency has tentatively
concluded that the impacts to the agency's ability to identify safety
defects from these technically-rich reports--as well as the competitive
impacts to submitters--outweigh the interest the public has in
disclosure of this information. Consequently, the agency proposes to
withhold this information under Exemption 4.
e. Common Green Tire Identifiers
The EWR rule requires certain tire manufacturers to provide a list
of common green tire data. 49 CFR Sec. 579.26(d). ``Common greens''
are tires ``that are produced to the same internal specifications but
that have, or may have, different external characteristics and may be
sold under different tire line names.'' 49 CFR 579.4(c). NHTSA proposes
to include EWR common green tire data in a class determination of
confidentiality based on the competitive harm prong of National Parks.
The common green tire information reveals the identities of tires that
share the same internal specifications and relationships between
manufacturers and private brand name owners. Tire manufacturers
previously indicated that these data are particularly valuable because
they permit competitors to assess individual manufacturer capabilities
and marketing strategies. 69 FR at 21417.
f. Other Issues To Be Considered
In addition to comments on the above, we seek comments on the
proposed approach. This includes whether the proposed categories for
certain EWR data (i.e., those data covering non-light vehicle
production, consumer complaints, warranty claims, field reports, and
common green tires) should be held confidential by class determinations
based on Exemption 4. For example, we invite commenters to
[[Page 63745]]
provide information relating to whether the release of this information
would provide competitors with valuable information relating to the
business of the reporting entity, such as marketing, performance
problems and/or costs, to the extent that the disclosure would cause or
be likely to cause the data submitter substantial competitive harm. We
are also interested in whether the disclosure of the information
covered by our proposed classes would significantly discourage
manufacturers from continuing to obtain and manage this information as
they do now.
Commenters may also address different approaches. We invite
comments that address the practical concerns of such potential
approaches. For example, if NHTSA were to adopt presumptive class
determinations for each of the EWR data categories, what are the
relative merits of each proposed class within the context of the large
volume of information generated by EWR requirements, and the manner in
which the agency can address the confidentiality of these materials in
an efficient and consistent manner.\19\
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\19\ ``Binding'' determinations would alleviate the need for
submitters to provide a formal written request for confidentiality
and supporting justification, whereas ``presumptive'' determinations
would require submitters to provide a written request and supporting
justification pursuant to 49 CFR Part 512.
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Commenters should also, where appropriate, indicate and demonstrate
how the restrictions imposed by Congress in 49 U.S.C. 30166(m)(4)(B)
would affect the agency's ability to continue collecting EWR data if
they are subject to routine disclosure. Supporting facts in favor or
against each class should be included as appropriate.
B. EWR Class Determination Based on FOIA Exemption 6
NHTSA receives VIN information under the EWR rule in reports on
incidents involving deaths and injuries. See e.g. 49 CFR 579.21(b)(2).
NHTSA is proposing to create a class determination that would apply to
the last six (6) characters of the unique seventeen (17) character
vehicle identification number (VIN) contained in EWR death and injury
reports. This proposal is grounded on Exemption 6 of the FOIA, which
protects information that would result in a clearly unwarranted
invasion of privacy if disclosed. See 5 U.S.C. 552(b)(6). See also
Center for Auto Safety v. NHTSA, 809 F. Supp. 148 (D.D.C. 1993).
Factually, this proposed exemption is based on the risk that the
disclosure of a full VIN could enable an individual to discern personal
information involving a vehicle owner that could result in an
unwarranted invasion of his or her privacy. With respect to EWR
submissions, NHTSA had previously issued a determination that the last
six (6) characters in the seventeen-character VIN should be protected,
as a class, from public disclosure under FOIA Exemption 6, 5 U.S.C.
552(b)(6). 69 FR at 21416. When coupled with publicly-available data
bases, the disclosure of a complete VIN can lead to the discovery of
personal information (e.g., name and address) about the owner of a
vehicle associated with a death or injury.\20\ The first 11 characters
of the VIN reveal the make, model, model year, and engine of the
vehicle, but the last six identify the specific vehicle. We are
concerned that release of VINs where there has been a death or an
injury reported under the EWR program would result in communications
and inquiries from third parties that would invade personal privacy.
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\20\ NHTSA has previously documented that full VINs can be used
to ascertain personal information on individual vehicle owners. See
Docket No. NHTSA-2002-12150, Item No. 64 (listing various publicly
available Web sites by which VIN information can be used to reveal
personal information).
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Since the public can still determine a vehicle's make and model
using the first 11 characters of the VIN, which would be released,
members of the public with an interest in motor vehicle safety can
still ascertain whether a particular type of vehicle may be involved in
a potential vehicle safety issue. As discussed above, however, the
revelation of the complete VIN is accompanied by the risk of an
invasion of privacy. On balance, the agency tentatively believes that
that interest in protecting the risk of invading individuals' privacy
outweighs the public's interest in this information and the agency has
tentatively concluded that this information merits withholding under
FOIA Exemption 6.\21\
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\21\ See generally Horowitz v. Peace Corps, 428 F.3d 271, 278-79
(D.C. Cir. 2005) (discussing balancing required under Exemption 6
and indicating that ``seemingly innocuous information'' can be
subject to the Exemption's protection).
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This new class determination would be set out in a new Appendix D,
which would read as follows:
Appendix D--Vehicle Identification Number Information
The Chief Counsel has determined that the disclosure of the last
six (6) characters, when disclosed along with the first eleven (11)
characters, of vehicle identification numbers reported in
information on incidents involving death or injury pursuant to the
early warning information requirements of 49 CFR Part 579 will
constitute a clearly unwarranted invasion of personal privacy within
the meaning of 5 U.S.C. 552(b)(6).
This proposal would apply as a rule to only those VINs that are
provided in EWR submissions and would not apply as a rule to the
agency's treatment of VINs in other instances.
We seek comment on the appropriateness of our proposal, as well as
variations on this proposal related to the confidentiality of all or
parts of VINs.
IV. Exemption 3
In its comments in the course of the earlier EWR CBI rulemaking,
and the memoranda it filed with the District Court in the Public
Citizen case, the RMA asserted that Exemption 3 of the FOIA covered all
EWR submissions, including requests for the confidentiality of EWR
information not within the scope of Appendix C to Part 512 as
promulgated in 2003 and amended in 2004 and individual requests for
confidentiality. The District Court rejected the contention that
Exemption 3 applies to the EWR data, concluding that the disclosure
provision affecting EWR data, 49 U.S.C. 30166(m)(4)(C),\22\ did not
qualify as an Exemption 3 statute because the provision does not
prescribe a formula to enable the agency to determine precisely whether
the disclosure of the data would be helpful in carrying out the recall
notification and remedy provisions of the Safety Act. It also noted
that the provision did not refer to particular matters that must be
withheld. See Public Citizen, 444 F. Supp. 2d at 12.
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\22\ The provision, 49 U.S.C. Sec. 30166(m)(4)(C), provides as
follows:
Disclosure. None of the information collected pursuant to the
final rule promulgated under paragraph (1) [i.e. early warning
reporting rule] shall be disclosed pursuant to section 30167(b)
unless the Secretary determines the disclosure of such information
will assist in carrying out sections 30117(b) and 30118 through
30121.
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RMA filed a notice of appeal of the District Court's Judgment. The
contention that NHTSA is precluded by statute from releasing the early
warning data is within the scope of this notice. Should the Court of
Appeals reverse the District Court on this issue and decide that
Exemption 3 does apply to EWR data, the agency may proceed to issue a
final rule exempting EWR data from disclosure in a manner consistent
with the Court of Appeal's decision or terminate the EWR Appendix C
portion of this rulemaking as unnecessary.
V. Other EWR Data
We are not proposing to include property damage claims and notices
of
[[Page 63746]]
death, personal injury or property damage as part of our class
determinations based on Exemption 4. These items involve a collection
of information, many pieces of which are publicly available. In the
particular circumstances of these data, we do not believe that the
disclosure of this collected information would likely provide
information that would be used competitively and result in substantial
competitive harm. These kinds of claims tend to be more historical,
rather than predictive, when compared to the other types of information
required by the EWR regulation, with any apparent trends arising over
longer periods of time. We consider it unlikely that information about
claims of death, personal injury or property damage will be valuable to
competitors such as in cross-company comparisons. We note also that
manufacturers receive claims based on incidents occurring in the field,
not as the result of proactive efforts to obtain data or customer
feedback. They are required under 49 CFR Part 576 to retain this
information and do not have the option to refuse to amass it.
Therefore, other than within the context of the Exemption 3
discussion above and except to the extent that the EWR submissions
contain personal information covered by Exemption 6, these data
categories lie outside the scope of this rulemaking.
VI. Identifying Confidential Information Located in Electronic Files
We are also proposing to clarify NHTSA's Confidential Business
Information rule, 49 CFR 512.6, regarding data claimed as confidential
that are submitted in electronic form. The current regulation states
requirements for paper submissions. See 49 CFR 512.6(a), (b)(1) and
(2); see also 49 CFR Sec. 512.8. It then states that if submitted in
electronic format, a comparable method to of identifying the
information claimed to be confidential may be used. If submitted on CD-
ROM or other format, the item containing the information shall be
labeled as containing confidential information. 49 CFR 512.6(c).
Some CD-ROMs that are submitted to us are not labeled or indelibly
marked as confidential on the disk itself. We propose to require that
the medium (e.g., the disk itself and not the plastic enclosure for the
disk) be permanently labeled with the submitter's name, the subject of
the information and the word ``Confidential.'' This is already the
routine practice with some manufacturers. In addition, during our
reviews of claims for confidential treatment, we often find that CD-
ROMs do not properly designate the information that the submitters
claim to be confidential. More particularly, individual files submitted
electronically (e.g., pdf format) on CD-ROMs often contain documents in
which each page claimed to be confidential is not labeled as
confidential. Also, while a page may contain some information that is
not confidential (e.g., identical information is publicly available)
and some information that is within the claim for confidentiality under
section 512.8, the submitter does not enclose each item of information
that is claimed to be confidential within brackets. Today's proposal
would require that the CD-ROM be marked permanently as confidential and
that each page that contains confidential material be so marked. Also,
the proposal would require that where only part of the information is
within the scope of the claim, that part of the information be
separately enclosed within brackets. Our proposed clarification seeks
to minimize inadvertent disclosure of materials that are subject to a
claim of confidentiality and eliminate any ambiguity on the scope of
the claim in our review of these types of submitted documents.
During our reviews of claims for confidential treatment, we also
find that files within CD-ROMs do not contain page numbers. Electronic
submissions sometimes contain large numbers of files and folders. Not
infrequently, these files contain numerous pages. When we deny a
request for confidentiality for a particular page, we need to identify
it with particularity. Individual pages within individual electronic
files that lack page numbers ordinarily cannot be readily identified.
In these instances, there are substantial implementation problems in
identifying what page(s) are within the scope of the agency's grant of
a request for confidentiality and what page(s) that are within the
scope of the agency's denial. To eliminate these problems, we are
proposing to add a provision requiring the inclusion of a sequential
numeric or alpha-numeric system that would identify each page contained
in an electronic submission. This may be added to the pages before they
are scanned or in the course of the preparation of the CD-ROM. We note
that the courts require page numbers in appendices. See e.g., Federal
Rule of Appellate Procedure 30.
The proposal also provides that electronic media may be submitted
only in commonly available and used formats. This would include formats
such as pdf, Word documents and Excel spreadsheets. From time-to-time,
manufacturers submit information in proprietary or uncommon data bases.
We have been unable to open and review these items and accordingly have
denied the associated requests for confidentiality.
Finally, we would clarify that requests for confidential treatment
for information submitted to the agency must provide the information
claimed as confidential in a physical medium such as a CD-ROM. There
have been occasions where manufacturers have attempted to submit
information claimed as confidential via e-mail. Not only was this not
allowed under the existing regulations, but tracking requests for
confidential treatment submitted in this manner is very difficult and
far more prone to error than a physical submission. This affects the
agency's ability to provide timely responses to these requests and the
Chief Counsel's office's ability to transmit the information to the
relevant office within NHTSA. In addition, the Department of
Transportation limits the overall amount of e-mail information that an
individual may maintain, and this presents problems. It also creates
storage issues. To ensure our ability to properly track and handle this
information, our proposal would require that the information be placed
on appropriate physical media, such as CDs, when requesting
confidential treatment.
These changes would be included in a new Sec. 512.6(c) which would
replace Sec. 512.6(b)(3). The proposed Sec. 512.6(c) would read as
follows:
(c) Submissions in electronic format
(1) Persons submitting information under this Part may submit
the information in electronic format. Except for early warning
reporting data submitted to the agency under 49 CFR part 579, the
information shall be submitted in a physical medium such as a CD-
ROM. The exterior of the medium (e.g., the disk itself) shall be
permanently labeled with the submitter's name, the subject of the
information and the word ``CONFIDENTIAL''.
(2) Pages and materials claimed to be confidential must be
designated as provided in paragraphs (b)(1) and (b)(2) of this
section. Files and materials that cannot be marked internally, such
as video clips or executable files, shall be renamed prior to
submission so the characters ``Conf'' or the word ``Confidential''
appear in the file name.
(3) Each page within an electronic file that is submitted for
confidential treatment must be individually numbered in the order
presented with a sequential numeric or alpha-numeric system that
separately identifies each page contained in that submission.
(4) Electronic media may be submitted only in commonly available
and used formats.
[[Page 63747]]
VII. Request for Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Please submit two copies of your comments, including the
attachments, to Docket Management at the beginning of this document,
under ADDRESSES. You may also submit your comments electronically to
the docket following the steps outlined under ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit the following to the Chief Counsel
(NCC-110) at the address given at the beginning of this document under
the heading FOR FURTHER INFORMATION CONTACT: (1) A complete copy of the
submission; (2) a redacted copy of the submission with the confidential
information removed; and (3) either a second complete copy or those
portions of the submission containing the material for which
confidential treatment is claimed and any additional information that
you deem important to the Chief Counsel's consideration of your
confidentiality claim. A request for confidential treatment that
complies with 49 CFR part 512 must accompany the complete submission
provided to the Chief Counsel. For further information, submitters who
plan to request confidential treatment for any portion of their
submissions are advised to review 49 CFR part 512, particularly those
sections relating to document submission requirements. Failure to
adhere to the requirements of part 512 may result in the release of
confidential information to the public docket. In addition, you should
submit two copies from which you have deleted the claimed confidential
business information, to Docket Management at the address given at the
beginning of this document under ADDRESSES.
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated at
the beginning of this notice under DATES. In accordance with our
policies, to the extent possible, we will also consider comments that
Docket Management receives after the specified comment closing date. If
Docket Management receives a comment too late for us to consider in
developing the proposed rule, we will consider that comment as an
informal suggestion for future rulemaking action.
How Can I Read the Comments Submitted by Other People?
You may read the comments received by Docket Management at the
address and times given near the beginning of this document under
ADDRESSES.
You may also see the comments on the Internet. To read the comments
on the Internet, take the following steps:
(1) Go to the Docket Management System (DMS) Web page of the
Department of Transportation (http://dms.dot.gov/).
(2) On that page, click on ``search.''
(3) On the next page (http://dms.dot.gov/search/), type in the
four-digit docket number shown at the heading of this document.
Example: if the docket number were ``NHTSA-2001-1234,'' you would
type ``1234.''
(4) After typing the docket number, click on ``search.''
(5) The next page contains docket summary information for the
docket you selected. Click on the comments you wish to see.
You may download the comments. The comments are imaged documents,
in either TIFF or PDF format. Please note that even after the comment
closing date, we will continue to file relevant information in the
Docket as it becomes available. Further, some people may submit late
comments. Accordingly, we recommend that you periodically search the
Docket for new material.
VIII. Privacy Act Statement
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted 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) or you may visit http://dms.dot.gov.
IX. Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735 (Oct. 4, 1993)), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to review by
the Office of Management and Budget (OMB) and to the requirements of
the Executive Order. The Order defines a ``significant regulatory
action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures (44 FR 11034 (Feb. 26, 1979)). This rulemaking
action is not significant under E.O. 12866, ``Regulatory Planning and
Review'' or the Department's regulatory policies and procedures. There
are no new significant burdens on information submitters or related
costs that would require the development of a full cost/benefit
evaluation. As indicated in the preamble, this document proposes
primarily to remedy a technical deficiency identified by a Federal
court and does not raise any new legal or policy issues. This proposed
rule does not present novel policy issues. Instead, it involves issues
that have been subject to past notice and comment and have also been
previously addressed in prior court proceedings.
B. Regulatory Flexibility Act
We have considered the effects of this rulemaking action under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) This proposed rule
would not have a significant economic impact on a substantial number of
small entities. This proposed rule would impose no
[[Page 63748]]
additional reporting obligations on small entities beyond those
otherwise required by the Safety Act and the early warning reporting
regulation. This proposed rule addresses the agency's treatment of
early warning reporting data and would clarify procedures for all
submitters, including small entities, with regard to confidentiality.
The rule would protect certain categories of early warning reporting
information from disclosure.
In addition, small entities, which generally submit items in hard
copy format, are expected to and may continue to do so. Those wishing
to submit information in electronic format would be able to do so using
the procedures that we are clarifying in this proposal. Therefore, a
regulatory flexibility analysis is not required for this proposed
action.
C. National Environmental Policy Act
NHTSA has analyzed this proposed rule for the purposes of the
National Environmental Policy Act and determined that it will not have
any significant impact on the quality of the human environment.
D. Executive Order 13132 (Federalism)
NHTSA has examined today's proposed rule pursuant to Executive
Order 13132 (64 FR 43255, August 10, 1999). This action would not have
``federalism implications'' because it would not have ``substantial
direct effects on 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,'' as specified
in section 1 of the Executive Order.
E. Unfunded Mandate Reform Act
The Unfunded Mandate Reform Act of 1995 requires agencies to
prepare a written assessment of the costs, benefits and other effects
of proposed or final rules that include a Federal mandate likely to
result in the expenditure by State, local or tribal governments, in the
aggregate, or by the private sector, of more than $100 million annually
(adjusted for inflation with base year of 1995). This proposal would
not result in the expenditure by State, local or tribal governments, in
the aggregate, or by the private sector, of more than $100 million
annually.
F. Executive Order 12988 (Civil Justice Reform)
With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996) requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect, if any; (2) clearly specifies any effect on
existing Federal law or regulation; (3) provides a clear legal standard
for affected conduct while promoting simplification and burden
reduction; (4) specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. This document is consistent with that requirement.
NHTSA notes that there is no requirement that individuals submit a
petition for reconsideration or pursue other administrative proceedings
before they may file suit in court.
G. Paperwork Reduction Act
The existing requirements of Part 512 are considered to be
information collection requirements as that term is defined by the
Office of Budget and Management (OMB) in 5 CFR part 1320. Accordingly,
the existing part 512 regulation was submitted to and approved by OMB
pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). At
the time that we submitted the prior requirements of part 512, these
requirements were approved through January 31, 2008. This proposal does
not revise the existing currently approved information collection under
part 512. Instead, the proposal contains the same requirements as
before and only clarifies procedures as to electronically-submitted
items to the agency for which confidentiality is sought. It does not
require electronic submissions.
H. Executive Order 13045
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under E.O. 12866, and (2) concerns an environmental, health or
safety risk that NHTSA has reason to believe may have a
disproportionate effect on children. This proposed action does not meet
either of these criteria.
I. Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
List of Subjects in 49 CFR Part 512
Administrative procedure and practice, Confidential business
information, Freedom of information, Motor vehicle safety, Reporting
and record keeping requirements.
In consideration of the foregoing, the National Highway Traffic
Safety Administration proposes to amend 49 CFR Chapter V, Code of
Federal Regulations, by amending part 512 as set forth below.
PART 512--CONFIDENTIAL BUSINESS INFORMATION
1. The authority citation for part 512 continues to read as
follows:
Authority: 49 U.S.C. 322; 5 U.S.C. 552; 49 U.S.C. 30166, 49
U.S.C. 30167; 49 U.S.C. 32307; 49 U.S.C. 32505; 49 U.S.C. 32708; 49
U.S.C. 32910; 49 U.S.C. 33116; delegation of authority at 49 CFR
1.50.
2. Section 512.6 is amended by removing paragraph (b)(3) and adding
a new paragraph (c) to read as follows:
Sec. 512.6 How should I prepare documents when submitting a claim for
confidentiality?
* * * * *
(c) Submissions in electronic format. (1) Persons submitting
information under this Part may submit the information in electronic
format. Except for early warning reporting data submitted to the agency
under 49 CFR part 579, the information shall be submitted in a physical
medium such as a CD-ROM. The exterior of the medium (e.g., the disk
itself) shall be permanently labeled with the submitter's name, the
subject of the information and the word ``Confidential''.
(2) Pages and materials claimed to be confidential must be
designated as provided in paragraphs (b)(1) and (b)(2) of this section.
Files and materials that cannot be marked internally, such as video
clips or executable files, shall be renamed prior to submission so the
characters ``Conf'' or the word ``Confidential'' appear in the file
name.
(3) Each page within an electronic file that is submitted for
confidential treatment must be individually numbered in the order
presented with a sequential numeric or alpha-numeric system that
separately identifies each page contained in that submission.
(4) Electronic media may be submitted only in commonly available
and used formats.
* * * * *
3. Appendix C to part 512 is revised to read as follows:
[[Page 63749]]
Appendix C to Part 512--Early Warning Reporting Class Determinations
(a) The Chief Counsel has determined that the following
information required to be submitted to the agency under 49 CFR part
579, subpart C, will cause substantial competitive harm and will
impair the government's ability to obtain this information in the
future if released:
(1) Reports and data relating to warranty claim information;
(2) Reports and data relating to field reports, including dealer
reports, product evaluation reports, and hard copies of field
reports; and
(3) Reports and data relating to consumer complaints.
(b) In addition, the Chief Counsel has determined that the
following information required to be submitted to the agency under
49 CFR 579, subpart C, will cause substantial competitive harm if
released:
(1) Reports of production numbers for child restraint systems,
tires, and vehicles other than light vehicles, as defined in 49 CFR
Sec. 579.4(c); and
(2) Lists of common green tire identifiers.
4. Appendix D to part 512 is redesignated as Appendix E to part 512
and a new Appendix D to part 512 is added to read as follows:
Appendix D to Part 512--Vehicle Identification Number Information
The Chief Counsel has determined that the disclosure of the last
six (6) characters, when disclosed along with the first eleven (11)
characters, of vehicle identification numbers reported in
information on incidents involving death or injury pursuant to the
early warning information requirements of 49 CFR part 579 will
constitute a clearly unwarranted invasion of personal privacy within
the meaning of 5 U.S.C. 552(b)(6).
Issued on: October 26, 2006.
Anthony M. Cooke,
Chief Counsel.
[FR Doc. E6-18285 Filed 10-30-06; 8:45 am]
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