[Federal Register Volume 69, Number 77 (Wednesday, April 21, 2004)]
[Rules and Regulations]
[Pages 21409-21425]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9005]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 512

[Docket No. NHTSA-02-12150; Notice 3]
RIN 2127-AJ24


Confidential Business Information

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Final rule; response to petitions for reconsideration; 
correction.

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SUMMARY: This document responds to petitions for reconsideration 
regarding amendments to NHTSA's regulation on Confidential Business 
Information. These petitions addressed the provisions relating to 
information submitted to NHTSA pursuant to the early warning reporting 
regulation. It also corrects a typographic error in the final rule.

DATES: This rule is effective on May 21, 2004. If you wish to submit a 
petition for reconsideration of this rule, your petition must be 
received by June 7, 2004.

ADDRESSES: Any further petitions for reconsideration should refer to 
the docket number and be submitted to: Administrator, Room 5220, 
National Highway Traffic Safety Administration, 400 Seventh Street, 
SW., Washington, DC 20590, with a copy to the docket. They may also be 
submitted to the docket electronically. Documents may be filed 
electronically by logging onto the Docket Management System Web site at 
http://dms.dot.gov. Click on ``Help & Information'' or ``Help/Info'' to 
obtain instructions for filing the document electronically. You may 
also visit the Federal E-Rulemaking Portal at http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    You may call Docket Management at 202-366-9324. The Docket room 
hours are from 9 a.m. to 5 p.m., Monday through Friday.

FOR FURTHER INFORMATION CONTACT: For questions contact Michael Kido or 
Lloyd Guerci. They can be reached in the Office of the Chief Counsel at 
the National Highway Traffic Safety Administration, 400 7th Street SW., 
Room 5219, Washington, DC 20590, or by telephone at (202) 366-5263.
    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 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. The Notice of Proposed Rulemaking
    B. The Final Part 512 Rule
    C. Petitions for Reconsideration
II. Consideration of the Issues Raised by the Petitions for 
Reconsideration
    A. FOIA Exemption 3
    B. NHTSA's Authority to Issue Class Determinations
    C. Scope of Notice
    D. The ``Presumptions'' of Confidentiality in Appendix B
    E. Determinations of Confidentiality in Appendix C
    1. Claims and Notices Regarding Fatalities, Injuries, and 
Property Damage
    2. VIN and State (or Foreign Country) Information
    3. Common Green Tires
    4. Production, Warranty Claims and Adjustments, Field Reports 
and Consumer Complaints
    a. Production Numbers
    b. Warranty Claims and Adjustments
    c. Field Reports
    d. Consumer Complaints
    F. Data Quality Act
III. Regulatory Analyses and Notices

I. Background

A. The Notice of Proposed Rulemaking

    On April 30, 2002, NHTSA published a Notice of Proposed Rulemaking 
(``NPRM'') to amend 49 CFR Part 512, Confidential Business Information 
(``Part 512'' or ``CBI''). 67 FR 21198 (April 30, 2002). The agency 
sought to simplify and update the regulation to reflect developments in 
the law. The NPRM also asked for comments on whether to

[[Page 21410]]

create class determinations covering portions of the data to be 
submitted under the early warning reporting (``EWR'') rule, (see 
Subpart C of 49 CFR Part 579), which NHTSA had proposed pursuant to the 
Transportation Recall Enhancement, Accountability and Documentation 
(``TREAD'') Act. The comment period closed on July 1, 2002.
    The agency received timely comments from various sectors of the 
automotive industry, including vehicle manufacturers, tire 
manufacturers, supplier and equipment manufacturers, and other 
interested parties. Comments were received from the following trade 
associations: The Alliance of Automobile Manufacturers, the Association 
of International Automobile Manufacturers, the Rubber Manufacturers 
Association, the Tire Industry Association, the Motor and Equipment 
Manufacturers Association and the Original Equipment Suppliers 
Association, the Automotive Occupant Restraints Council, the Juvenile 
Products Manufacturers Association, the Truck Manufacturers Association 
and the Motorcycle Industry Council. Comments were received also from 
individual manufacturers: General Motors North America, Cooper Tire, 
Utilimaster, Blue Bird Body Company, Bendix, Harley-Davidson Motor 
Company, Hella North America, WABCO North America, Meritor-WABCO, and 
Workhorse Custom Chassis. Enterprise Rent-A-Car Company and the 
Washington Legal Foundation also filed comments. Individual requests 
for confidential treatment for all EWR submissions were also received 
by several trailer manufacturers and from the Truck Trailer 
Manufacturers Association. Public Citizen also filed comments on 
November 27, 2002, as well as supplemental comments thereafter. The 
agency considered all comments when promulgating the final CBI rule.
    The vast majority of the comments addressed whether the various 
categories of EWR information should be treated confidentially. Public 
Citizen argued that all information should be disclosed. Business 
interests argued that some or all of the data should be withheld from 
disclosure, claiming either that Congress intended for the agency to 
withhold all early warning reporting information or that disclosure 
would cause substantial competitive harm or result in less information 
being available for the agency's early warning detection program.

B. The Final Part 512 Rule

    The final CBI rule specifically addressed the disclosure or 
confidentiality of EWR data.\1\ 68 FR 44209, 44216 et seq. (July 28, 
2003). The agency determined that the TREAD Act's provision on 
disclosure of EWR information (49 U.S.C. 30166(m)(4)(c)) did not allow 
withholding all EWR information from disclosure under Exemption 3 of 
the Freedom of Information Act (``FOIA''), which incorporates 
nondisclosure provisions contained in other federal statutes. The 
agency concluded that Section 30166(m)(4)(c) was not intended to 
foreclose the application of FOIA Exemption 4 to determine whether 
certain data should be disclosed under FOIA, but rather was intended to 
make more stringent the showing necessary for the agency to disclose 
otherwise confidential information.
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    \1\ The agency also set out the procedures to follow in seeking 
confidential treatment for information generally. Section 512.21(c) 
of those procedures contained a typographical error. After referring 
to the Chief Counsel's denial of a petition for reconsideration of 
the denial of a request for confidentiality, the rule states that 
``the information may make the information available.'' We are 
correcting this to state that once a petition for reconsideration 
under Part 512 has been denied, ``the agency'' may make the 
information publicly available.
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    The agency determined that some, but not all, of the types of 
information required under the EWR rule would be withheld from 
disclosure pursuant to Exemption 4. This exemption is applicable to 
certain confidential business information that, if disclosed, would 
likely cause substantial competitive harm, impair the government's 
ability to obtain information in the future, or both. The agency 
created class determinations applicable to EWR information pertaining 
to production numbers (except those for light vehicles), warranty 
claims, field reports, and consumer complaints. Those class 
determinations were added as Appendix C to 49 CFR Part 512. Further, 
the agency concluded that the disclosure of certain categories of EWR 
data is likely neither to cause substantial competitive harm nor to 
impair the government's early warning detection program. Accordingly, 
the agency decided against creating class determinations covering EWR 
information relating to fatality and injury claims and notices and to 
property damage claims.
    The agency retained the class determinations on confidentiality in 
Appendix B, which have been applied for years to blueprints and 
engineering drawings containing process of production data (under 
limited conditions), future specific model plans (until the first model 
is offered for sale), and future vehicle production or sales figures 
for specific models (until the applicable model year production period 
ends). The agency revised the language of Appendix B to provide that 
such materials are determined entitled to protection under FOIA 
Exemption 4, as opposed to the historical language providing that such 
materials were presumed to be entitled to such protection.

C. Petitions for Reconsideration

    The agency received three timely Petitions for Reconsideration, one 
each from the Rubber Manufacturers Association (``RMA''), the Alliance 
of Automobile Manufacturers (``the Alliance''), and Public Citizen 
Litigation Group on behalf of the Trauma Foundation, the Consumer 
Federation of America, Advocates for Highway and Auto Safety and the 
Center for Auto Safety (``PCLG'').
    The RMA asks the agency to hold all of the EWR information 
confidential. It reiterates its position that Section 30166(m)(4)(c) 
qualified as a FOIA Exemption 3 statute prohibiting the release of any 
EWR information submitted to the agency and argues further that the 
release of this information would violate the Data Quality Act, 44 
U.S.C. 3516. The RMA also makes further arguments in support of its 
position that fatality, injury and property damage claim information 
should be accorded class treatment under FOIA Exemption 4 and sought 
clarification of the agency's intended treatment of EWR reports 
relating to common green tires.
    PCLG, on the other hand, asks the agency to vacate all the EWR 
class determinations in Appendix C and to release all of the EWR 
information to the public. PCLG reiterates the view expressed 
previously by Public Citizen in its comments on the NPRM that the 
purposes of the TREAD Act can only be achieved if all of the EWR 
information is available to the public.\2\ PCLG claims the NPRM did not 
provide sufficient notice that the agency would consider the creation 
of class determinations or change the language of the pre-existing 
class determinations. PCLG also argues that the agency lacks authority 
to create class determinations, and further that

[[Page 21411]]

individualized showings are necessary before any data are withheld.
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    \2\ In the Final Rule, we explained that the agency and Public 
Citizen differed in their views of the purposes of the TREAD Act. 
Public Citizen, and now PCLG on behalf of the petitioning 
organizations, contends that the early warning provisions of the 
TREAD Act were intended to supply the public with vast amounts of 
information collected from manufacturers. NHTSA believes that the 
provisions were intended to enhance the information available to the 
agency from which it could promptly identify potential problems.
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    The Alliance requests that the agency reconsider its anticipated 
treatment of vehicle identification numbers (``VIN'') in EWR reports 
relating to fatalities and injuries. According to the Alliance, 
information is readily available over the Internet from which personal 
identifiers can be discerned using the complete VIN information. On 
this basis, the Alliance requests that the agency withhold from public 
disclosure complete VIN information pursuant to FOIA Exemption 6. The 
Alliance also asks that the agency withhold from public disclosure 
information relating to the state in which a reportable incident 
occurred as well as information on the country if the incident relates 
to an event that occurred outside of the United States. Again, the 
Alliance claims that state and foreign country information, when 
combined with other data, can lead to the revelation of personal 
information.

II. Consideration of the Issues Raised by the Petitions for 
Reconsideration

A. FOIA Exemption 3

    The RMA reasserts its comment on the NPRM that Section 
30166(m)(4)(c) is a statutory prohibition against the disclosure of any 
early warning data unless and until a defect or noncompliance 
investigation has been opened by NHTSA. RMA adds no new information to 
support its position.
    As set forth in the detailed analysis accompanying the final Part 
512 rule, the agency has concluded that Section 30166(m)(4)(c) does not 
qualify as an Exemption 3 provision. The case law makes clear that to 
satisfy Exemption 3, a law must either require that matters be withheld 
from the public in such a manner as to leave no discretion on the issue 
or establish particular criteria for withholding information or refer 
to types of matters to be withheld. In either instance, the level of 
discretion afforded to the agency must be severely restricted, a 
situation that is not evidenced by the language of 49 U.S.C. 
30166(m)(4)(c). This statutory provision instructs the Secretary to 
determine initially which of the early warning reporting information is 
entitled to confidential treatment as confidential business information 
and, if so, then to consider whether disclosure will assist in the 
agency's implementation of the defect and remedy provisions of the Act. 
See 68 FR at 44225-44226. Among other things, the Secretary's decision 
whether the disclosure of the information will assist in carrying out 
those other statutory provisions is highly discretionary.

B. NHTSA's Authority To Issue Class Determinations

    PCLG asks the agency to reconsider its use of the ``class 
determination'' device, arguing that the agency lacks the authority to 
issue regulations treating like information as categorically subject to 
a FOIA exemption. According to PCLG, where Congress wants to exempt a 
category of records without requiring submitters to satisfy FOIA 
Exemption 4, it has exempted the information by statute.
    PCLG argues that the agency may not treat any submission as subject 
to a FOIA exemption unless the submitter has made an individual showing 
that disclosure of the particular data meets the requirements of FOIA 
Exemption 4. Under its approach, the agency would have to review each 
EWR submission from each manufacturer regarding each reported item of 
data for each reporting period individually.
    The agency disagrees. PCLG would require individual reviews despite 
the long history of class determinations, and the facts that numerous 
EWR reports containing the same informational elements for each 
category of manufacturer under 49 CFR 579.21-579.26 are submitted 
pursuant to standardized electronic reporting templates and that the 
information elements do not change from reporting period to reporting 
period. Because each data submission contains the same elements of 
information, in the same format (as required by the regulation), 
decisions relating to the disclosure of the data will not vary. As a 
result, individualized determinations will merely impose an 
administrative burden on the agency and manufacturers that can be 
avoided through a class determination.
    The agency first proposed class determinations in a 1978 NPRM and 
adopted them in a final rule issued in 1981. See 46 FR 2049 (Jan. 8, 
1981). During this early rulemaking, NHTSA made clear that a key 
purpose of the class determination was to improve its efficiency in 
processing requests for confidential treatment with regard to 
sufficiently specific categories of information:

    Although making class determinations relating to business 
confidential information is a difficult undertaking (as evidenced by 
the fact that few agencies make such determinations), the agency 
believes that to the extent that such meaningful classes can be 
identified and described, class determinations will ease the burdens 
of both the agency and submitter of information in making and 
processing claims for confidential treatment of information.

43 FR 22412, 22414 (May 25, 1978).\3\ NHTSA also stated that the 
process would benefit the public by making information not subject to a 
FOIA exemption available more quickly. 46 FR 2049.
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    \3\ The Freedom of Information Clearinghouse 
(``Clearinghouse''), a joint project between Public Citizen and the 
Center for Responsive Law, commented on the original CBI rule, 
noting that the group generally supported the proposed rulemaking 
but expressed reservations over the application of class 
determinations unless the determinations were rebuttable and did not 
act to limit the authority of the Administrator to release that 
information under limited conditions. Comments from the Freedom of 
Information Clearinghouse, Docket 78-10; Notice 1, No. 10, at 3 
(July 28, 1978). NHTSA incorporated these suggestions into the final 
rule. The Clearinghouse raised similar concerns during a subsequent 
Part 512 rulemaking that addressed, among other things, the 
confidentiality of cost data as a class. Comments from the Freedom 
of Information Clearinghouse, Docket 78-10; Notice 9, No. 5, at 5 
(Aug. 21, 1989). Provisions allowing the Administrator to make 
otherwise confidential information public remain today, and the 
disclosure provision in the TREAD Act addresses that process.
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    Thus, since 1981, NHTSA's regulations have included a provision (49 
CFR 512.10 (2002)) declaring the authority of the Chief Counsel to 
issue class determinations. Consistent with this authority, Appendix B 
to Part 512 has long included three class determinations that identify 
certain classes of information as presumptively resulting in 
substantial competitive harm to a submitter if disclosed.
    Class determinations of confidentiality are not unique to NHTSA. 
Class determinations contained within Food and Drug Administration 
regulations cover certain information that the agency receives. See, 
e.g. 21 CFR 20.111(d). Similarly, the Environmental Protection Agency 
has established through regulation a process through which it creates 
class determinations, 40 CFR 2.207, and has created a number of class 
determinations that cover specified information. Like the EWR data 
received by NHTSA, the information covered by these regulatory regimes 
is not generally subject to a statutory prohibition on disclosure that 
satisfies FOIA Exemption 3.
    In their interpretations of FOIA, courts have encouraged the 
development of categorical rules whenever a particular set of facts 
will lead to a generally predictable application of FOIA. See, Critical 
Mass Energy Project v. NRC, 975 F.2d 871, 879 (D.C. Cir. 1992) (en 
banc). In Critical Mass, the court noted that establishing a discrete 
category of exempt information will implement the

[[Page 21412]]

congressional intent to provide workable rules and that such 
categorical rules further FOIA's purpose of expediting disclosure. Id.
    Courts have not questioned the authority of agencies to promulgate 
regulations involving confidentiality under FOIA. See Neal-Cooper Grain 
Company v. Kissinger, 385 F. Supp. 769 (D.D.C. 1974) (discussing agency 
regulation that protected certain categories of information from 
disclosure), and EEOC v. Associated Dry Goods, 449 U.S. 590 (1981) 
(upholding the validity of an agency's regulation that permitted 
limited disclosures of case information to the relevant parties, their 
attorneys, and witnesses as necessary for the agency to carry out its 
functions under Title VII of the Civil Rights Act).\4\
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    \4\ See also, O'Reilly, Fed. Info. Disclosure 3d, section 10.10 
(2000) (agencies which have frequent submissions of confidential 
business data may pre-designate specific classes as confidential.)
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    In adopting the final CBI rule, NHTSA made a decision to proceed by 
rule rather than individual determinations. The choice whether to 
employ rulemaking or individual adjudications to resolve an issue is 
one left primarily to the agency, SEC v. Chenery, 332 U.S. 194 (1947), 
and courts have consistently and favorably recognized the ability of 
agencies to promulgate regulations without having to resort to 
individual resolutions or orders. See National Petroleum Refiners Ass'n 
v. FTC, 482 F.2d 672 (D.C. Cir. 1973).
    There are many valid reasons for proceeding by rule. To begin, the 
EWR regulation requires the submission of standardized reports, which 
are particularly well suited to the resolution of confidentiality 
claims by rule. Its provisions apply to manufacturers of certain types 
of motor vehicles and motor vehicle equipment. For each type of vehicle 
or equipment, the reporting elements are identical for all covered 
manufacturers. The reporting is performed utilizing standardized 
reporting templates. While the data reflect the individual experience 
of each manufacturer, the nature of the information reported is the 
same.
    Whether particular information is entitled to confidential 
treatment under Exemption 4 depends on the nature of the information 
and the likely consequences of its release. EWR information from 
various manufacturers of motor vehicles, child restraints and tires 
(e.g., the number of warranty claims) should be treated the same way 
under the law, both because the impact of disclosure on the competitive 
environment is the same as applied to those manufacturers and because 
the possibility that releases of the information could lead to more 
restrictive policies applicable to warranties, field reports and 
customer complaints is the same. Proceeding by rule achieves consistent 
resolutions of confidentiality based on criteria under Exemption 4.
    Second, mandating individual requests for confidential treatment 
would, taking into account in-house experience and capabilities, 
subject smaller businesses to a disadvantage. We expect that larger 
manufacturers would routinely seek confidential treatment for EWR 
submissions, but that many smaller manufacturers (who are less familiar 
with regulatory practice) would have difficulty in properly assembling 
and submitting the material that must accompany an individual request 
for confidential treatment under Part 512. As a result, it is likely 
that the data submitted by larger manufacturers would be accorded 
confidential treatment under Exemption 4, but that the same type of 
data submitted by relatively small businesses would not. The small 
business would then face the costs of obtaining outside support for an 
appeal under 49 CFR 512.9. These burdens and costs run against the 
grain of federal laws and executive orders that seek to reduce, as 
opposed to increase, the regulatory costs on small businesses. See 
e.g., 5 U.S.C. 601 note. While we anticipate that, over time, smaller 
businesses will properly seek such treatment for their submissions and 
learn how to present a valid claim, in the interim, a small business 
would be unduly disadvantaged despite the fact that its submissions 
should be entitled to the same treatment as those of larger and more 
sophisticated manufacturers.
    Third, the courts have long recognized that agencies have the 
ability to promulgate those regulations that are necessary for them to 
perform those tasks Congress has assigned them. See Federal Power 
Comm'n v. Texaco, 377 U.S. 33 (1964) and In re Permian Basin Area Rate 
Cases, 390 U.S. 747, 780 (1968). See also Weinberger v. Bentex 
Pharmaceuticals, 412 U.S. 645, 653 (1973); Balelo v. Baldrige, 724 F.2d 
753, 760 (9th Cir. 1984). In establishing the early warning reporting 
program, Congress directed NHTSA to collect information from 
manufacturers to assist the agency in promptly identifying possible 
safety-related defects. 49 U.S.C. 30166(m). Congress recognized that 
much of the information would be statistical in nature, reporting of 
the information would be in electronic form, and computer database 
systems would be used to review and utilize the information.\5\
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    \5\ See 49 U.S.C. 30166(m)(3)(A) (providing for the Secretary to 
collect warranty and claims data, including aggregate statistical 
data on property damage from alleged defects) and 49 U.S.C. 
30166(m)(4)(A) (providing that the Secretary shall specify the form 
of reporting EWR data, including by ``electronic form''). Congress 
also told the agency to identify the systems it would employ to 
review and utilize the information and to take into account the 
agency's ability to use the information in a meaningful manner to 
assist in the identification of safety related defects. 49 U.S.C. 
30166(m)(4)(A)(ii) and (D).
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    Consistent with the statute and to achieve the results Congress 
expects--the earlier identification of potential safety issues--in a 
manner that does not require unavailable staffing, NHTSA has required 
manufacturers to submit large volumes of data in a consistent format 
that a computer can manage and sort through using statistical analyses. 
See 67 FR 45865-66. The resolution of the confidentiality of EWR data 
by class determination rather than by individualized assessment is 
consistent with this approach. If individualized review of 
confidentiality requests were required, the limited capacity to review 
a large number of individual confidentiality requests,\6\ rather than 
the ability to efficiently assess large volumes of early warning data 
by computer and make follow-up inquiries, would strongly and negatively 
influence the scope of the early warning data collection effort. If 
NHTSA were to tailor early warning reporting to its capacity to 
manually process confidentiality requests made by individual written 
requests as opposed to class determination by rule, the program would 
be constricted and the results contemplated by statute would be 
compromised.
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    \6\ In the first reporting period, early warning reports were 
submitted by over 50 light vehicle manufacturers, over 70 bus and 
medium-heavy vehicle manufacturers, over 150 trailer manufacturers, 
13 motorcycle manufacturers, 18 tire manufacturers, and 8 child 
restraint manufacturers.
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    Finally, we are concerned that requiring individual requests for 
confidential treatment would have an adverse effect on the public's 
ability to access the public portions of the EWR data expeditiously. 
Were we to require individual confidentiality claims, we expect that 
manufacturers would make claims for confidentiality covering various 
EWR submissions. We would need to review and analyze each claim 
separately. Under Part 512, information that is the subject of a 
confidentiality claim is withheld from disclosure to the public while 
the agency considers the claim. The result is likely to be a 
substantial ``back-log'' of EWR

[[Page 21413]]

information in the confidentiality review process. Data that ultimately 
will be determined to be public will not be identified and made public 
until the process is complete, on a claim-by-claim basis. Moreover, the 
data would not be public until manually transferred to the public 
portion of the agency's data system on an individualized basis, which 
would entail further delay. The diversion of effort to review 
confidentiality claims for EWR information would also slow the 
processing of confidentiality requests covering other sorts of 
information submitted to the agency and, similarly, it would delay 
determinations that some of that information is not public and the 
release of that information to the public.
    This stands in contrast to the system being implemented based on 
class determinations, which enables the agency to transfer appropriate 
data directly to the public section of the EWR database promptly 
following its receipt. In short, consistent with the use of a 
computerized database contemplated by the TREAD Act, class 
determinations allow the agency to establish database protocols that 
automatically protect confidential data while allowing prompt access to 
non-confidential information. In contrast, a system requiring 
individual review of every confidentiality claim is likely to delay the 
public's access to information not protected by a FOIA exemption.
    In sum, we believe that the agency has the authority to establish 
class determinations categorically covering similar information (as it 
has done for decades), and that the early warning reporting information 
(with its standardized reports) is particularly well suited to class 
determinations. Individual consideration of each early warning 
submission is not only infeasible, but also would seriously overwhelm 
agency resources.

C. Scope of Notice

    PCLG asserts that the agency did not provide adequate notice that 
it might apply class determinations to EWR data. It asserts the NPRM 
did not propose the categorical exemptions for EWR information or 
identify them as an option that the agency was considering, but rather 
expressed the intent not to add class determinations and to create a 
presumption of disclosure. Accordingly, PCLG claims the class 
determinations should be vacated.
    We disagree. The NPRM provided sufficient notice under the 
Administrative Procedure Act (``APA'') of the agency's considerations 
with regard to the confidentiality of the EWR information. The APA is 
intended to ensure that the public has a meaningful opportunity to 
comment on potential agency action. The case law construing the APA 
makes clear that a final rule may differ from the proposed rule and 
that additional information received during the notice and comment 
period will play a role in shaping the terms of the final 
regulation.\7\
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    \7\ The question whether the initial notice is adequate 
sometimes is cast in terms of whether a second round of comment is 
necessary. The test for deciding whether a second round of comment 
is required is whether the final rule promulgated by an agency is a 
logical outgrowth of the proposed rule. American Water Works Ass'n 
v. EPA, 40 F.3d 1266, 1274 (D.C. Cir. 1994). That standard is 
applied functionally by asking whether the purposes of notice and 
comment have been adequately served--that is, whether a new round of 
notice and comment would provide the first opportunity for 
interested parties to offer comments that could persuade the agency 
to modify its rule. Id. See also Environmental Defense Center v. 
EPA, 344 F.3d 832, 851 (9th Cir. 2003) (restating logical outgrowth 
test).
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    The NPRM expressly sought comment on whether to create class 
determinations with regard to the EWR data, while recognizing that the 
final EWR requirements had been proposed but not yet been promulgated. 
After discussing the possibility of creating class determinations 
applicable to information submitted in response to particular 
investigations,\8\ the agency sought comments with regard to the 
treatment of EWR information:
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    \8\ Many manufacturers pointed out the distinction between the 
comprehensive nature of the EWR data and submissions in response to 
information requests in individual defect investigations for which 
they generally do not seek confidential treatment.

    We are also interested in receiving comments regarding whether 
any of the proposed class determinations should be applicable to the 
material to be submitted under the agency's ``early warning'' 
regulations and whether any additional class determinations should 
be established. For example, the agency's ``early warning'' NPRM 
proposes that manufacturers submit to the agency reports on 
incidents involving deaths or injuries and copies of field reports. 
The agency seeks comments regarding whether the agency should 
presumptively determine that these (or a subset of these) types of 
documents would or would not cause competitive harm to the submitter 
if released. Any suggested changes or additions to the proposed list 
of class determinations should be justified. We recognize that a 
final rule has not yet been issued regarding the ``early warning'' 
requirements, but we ask commenters to provide as much information 
as possible within this comment period. If necessary, we will allow 
for additional comments prior to finalizing any class determinations 
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covering the ``early warning'' submissions.

    There can be no doubt that the public understood the potential 
scope of the rulemaking. We received numerous comments from a myriad of 
sources. The comments--including those of Public Citizen--addressed all 
parts of the EWR requirements and addressed in detail each category of 
EWR data as a class. This included both whether the various categories 
of EWR information should be accorded confidentiality and the nature of 
the determination.
    Public Citizen's comments expressly addressed the possibility of 
creating additional class determinations, favoring those that would 
find data presumptively public and opposing those that would find 
information presumptively confidential. Public Citizen argued that no 
showings of substantial competitive harm were significant enough to 
justify the use of class determinations for any EWR information. This 
supports our conclusion that Public Citizen, as well as other 
interested members of the public, had adequate notice about the 
possible application of class determinations to EWR information.

D. The ``Presumptions'' of Confidentiality in Appendix B

    In the final CBI Rule, the agency amended the preexisting class 
determinations--contained in Appendix B to Part 512--from 
determinations that information covered by those class determinations 
would be treated as presumptively confidential to determinations that 
the information is protected by FOIA Exemption 4. We did not change the 
scope of Appendix B, which applies to certain categories of 
information--blueprints and engineering drawings that contain process 
and production data, future specific model plans (until the vehicle 
model is offered for sale), and future vehicle production or sales 
figures (under limited circumstances) for specific models. PCLG 
objected to the amendment.
    Upon reconsideration, we agree with PCLG that there is merit to the 
application of a presumption, as opposed to a determination, for the 
class determinations in Appendix B. Appendix B is typically invoked by 
a company in connection with the submission of specific information in 
response to an agency information request. The agency reviews the 
materials in light of the claim that the particular information falls 
within the category of information covered by Appendix B. The submitter 
also provides the certification required by 49 CFR 512.4, which 
requires the company to attest that it has in fact maintained the 
confidentiality of the material at issue.

[[Page 21414]]

    While not common, it is possible that information a manufacturer 
claims to be covered by a class determination is not in fact covered by 
that class determination. For example, a sketch of a component may be 
claimed to be an ``engineering drawing,'' but in fact may not be 
specific enough to enable another company to manufacture it. The 
dimensions and specifications of some commonly used automotive 
components (i.e. wheel studs, brake linings, suspension components, 
etc.) may already be in the public domain. A future product plan may 
have been announced, or may be announced between the time the claim is 
made and when we review the claim.
    The presumption, coupled with the requirement for an individualized 
claim, strikes a balance consistent with the possibility that materials 
submitted may be outside the scope of Appendix B, and the possibility 
that materials may be in the public domain.
    In light of their application, we have decided that the class 
determinations in Appendix B had properly provided that the agency has 
determined that disclosure of data within those categories 
``presumptively'' will cause substantial competitive harm. Appendix B 
is being revised to read as it had before the final rule became 
effective.\9\
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    \9\ In contrast to Appendix B, we continue to believe it 
appropriate that the class determinations in Appendix C (applicable 
to EWR data) include a determination that the covered classes are 
exempt from disclosure, rather than a determination that they are 
``presumptively'' exempt from disclosure. Unlike particular 
submissions responding to specific questions in individual 
investigations, the EWR data will provide identical elements of 
information pursuant to the EWR regulation, electronically, at 
regular intervals. The EWR data do not give rise to the same concern 
leading us to reestablish the ``presumption'' applicable to other 
class determinations. There is no issue as to whether it falls 
within or outside of the category of information covered by the 
class determination.
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E. Determinations of Confidentiality in Appendix C

    The RMA and PCLG petitions ask the agency to change its treatment 
of EWR data, taking diametrically opposed positions. The RMA argues 
that Appendix C to Part 512 should be expanded to include all EWR data 
not already included in Appendix C, i.e., information about claims and 
notices of fatalities and injuries, the number of property damage 
claims, and information about common green tires. In contrast, PCLG 
asks the agency to vacate all of Appendix C, asserting that the class 
determinations for certain production data, and information relating to 
warranty data, field reports and consumer complaints were not 
justified.
    In addition, the Alliance petition seeks an expansion of the 
Appendix C class determinations of confidentiality to include two data 
elements in reports on incidents involving fatalities and injuries--
vehicle identification numbers (``VINs'') and state or country of 
incident (if outside of the United States).
1. Claims and Notices Regarding Fatalities, Injuries, and Property 
Damage
    In the final CBI rule, the agency concluded that the information 
about claims and notices of fatalities and injuries and the number of 
property damage claims (``claims information'') are not entitled to 
confidential treatment. We noted that information about such claims is 
often publicly available, either from court documents or from media 
reports about crashes. As we explained, this information is not likely 
to reveal business strategies or other data that can be used 
competitively. We also found there to be no likelihood that disclosing 
this information would impair the agency's defect investigation 
program.
    The RMA petitions the agency to reconsider its treatment of these 
claims data, asserting that information about fatality, injury or 
property damage claims is similar in nature to that about warranty 
claims, field reports and consumer complaints, which are included in 
the Appendix C class determinations of confidentiality. The RMA also 
argues that the claims information amounts to unverified or 
unsubstantiated allegations, preliminary to the determination of a 
defect, and will be wrongly perceived by consumers and others. It 
contends that the data may be used in misleading cross-company 
comparisons, potentially affecting purchasing decisions by consumers, 
and that this could result in competitive harm. The RMA further asserts 
that the compilation of information about claims provides a more robust 
database than might otherwise be publicly available.
    We have considered the RMA's petition, but continue to believe that 
early warning reporting information on fatality, personal injury and 
property damage claims does not fall within the purview of FOIA 
Exemption 4. Unlike the comprehensive disclosure of warranty, field 
report and consumer complaint information, release of EWR claims 
information will not reveal underlying business decisions, approaches 
and strategies. As explained in the final rule, the warranty, field 
report and complaint information reflect the business policies, 
practices and decisions (and, in some circumstances, cost structures) 
of each manufacturer. Disclosure of the comprehensive database of this 
information would provide competitors with information about how 
consumers view their products and corporate marketing efforts. They 
reflect what customers say, like or dislike and seek to have repaired, 
changed or replaced, providing considerable feedback, by system and 
component, on product performance and developmental issues.
    In contrast, disclosure of information on fatality, injury and 
property damage claims does not reveal corporate strategies or 
intangibles such as consumer acceptance of product features or reaction 
to corporate programs, such as broader warranty coverage.\10\ The 
claims data are far fewer in number. They reflect actual events 
(although the cause and nature of the event and the responsibility for 
any consequential injury or damage is often disputed) that are 
historical and do not reflect ongoing and typical customer experiences 
or product evaluations.\11\ The remainder of RMA's petition appears to 
be premised primarily on two erroneous beliefs. First, the RMA seems to 
assume that early warning data will be treated as evidence of a safety-
related defect. Second, the RMA argues that disclosure should be 
consistent with the general treatment of information exchanged during 
discovery in private litigation as opposed to the mandates of the 
Freedom of Information Act. Both premises are wrong.
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    \10\ Under Exemption 4, the information to be protected must be 
commercial or financial. Data relating to fatalities, injuries and 
property damage claims are based on certain information received 
involuntarily by the manufacturers, and do not constitute commercial 
or financial information. See generally, National Ass'n of Home 
Builders v. Norton, 309 F.3d 26, 38-39 (D.C. Cir. 2002).
    \11\ Under the early warning regulation, claim and notice 
information is different from customer complaint data. Customer 
complaints are communications received by manufacturers expressing 
dissatisfaction with a product (whether because of performance or 
the possible presence of a defect) and by definition do not include 
a claim or notice involving a fatality or injury. In general, claims 
involve written requests or demands for relief that a manufacturer 
receives, and notices refer to information received by a 
manufacturer (other than a media article), that do not include a 
demand for relief. Customer complaints reveal overall customer 
experience, while claims and notices reflect specific claims for 
relief premised on allegations of actual injury or damage.
---------------------------------------------------------------------------

    The final rule made clear that the purpose of the early warning 
data is to provide the agency with information indicating possible 
safety-related problems in motor vehicles and equipment. The data will 
assist the agency in determining what issues should be investigated to 
ensure that safety related defects are addressed expeditiously. Early 
warning

[[Page 21415]]

information, coupled with other information in the agency's possession, 
will be used to identify appropriate issues for investigation, and will 
not, in themselves, demonstrate that a safety-related defect exists.
    Like NHTSA, RMA is of the view that EWR data relating to 
fatalities, injuries and property damage are not defect data. RMA has 
not provided support for its premise that--contrary to its position--
these EWR data will be perceived as defect data. In any event, RMA 
proceeds to assert that the data should be treated confidentially 
because there will be cross-company comparisons. Even assuming cross-
company comparisons based on the death, injury and property damage 
claims data could be made, the comparisons themselves do not give rise 
to substantial competitive harm within the meaning of Exemption 4. Nor 
has the RMA demonstrated that the comparisons would substantially 
affect purchasing decisions.
    The tire industry's market can be divided into two segments: sales 
of tires to vehicle manufacturers for new vehicles, which the RMA 
refers to as original equipment customers, and sales to the replacement 
market. Vehicle manufacturers are very sophisticated purchasers, and 
often are involved directly in the design of tires supplied by tire 
manufacturers. Vehicle manufacturers also have considerable experience 
with early warning data. The RMA has not shown that vehicle 
manufacturers would base tire purchases on the early warning death, 
injury and property damage claims information submitted by tire 
manufacturers, and the RMA's own statements that the information is not 
useful for comparisons (e.g., because of the absence of production data 
from which normalized rates could be developed) support our view that a 
competing tire manufacturer would not use the early warning claims data 
in a competitively harmful way.\12\
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    \12\ This stands in contrast to the manner in which competitors 
could readily use other EWR data such as warranty data. For example, 
GM explained that warranty data provide an index of manufacturer 
costs and reveal a manufacturer's field experience with a particular 
component and supplier, which would enable competitors to benefit 
from a submitter manufacturer's experience in selecting suppliers. 
Disclosing warranty data would also benefit suppliers vis-a-vis a 
manufacturer since suppliers would receive information that they do 
not receive under current information sharing efforts. Similarly, 
JPMA observed that warranty data provide ``real time'' information 
concerning a company's production capacities, sales and market 
performance, which, if disclosed, would enable competitors to 
identify vulnerabilities and allow them to target production and 
marketing efforts accordingly. The effects of disclosure are 
discussed in greater detail in the section on warranties and in the 
final rule's preamble.
---------------------------------------------------------------------------

    Similarly, the RMA has not demonstrated that the release of these 
categories of early warning data likely would cause substantial 
competitive harm in the replacement tire market. As indicated by the 
RMA's petition, tire manufacturers themselves would not make, and would 
generally deny the validity of, any comparisons based on these data. 
This view of the validity of comparisons suggests that competitors 
would not go to the effort to develop comparisons and substantially 
undercuts their impact.
    Even assuming that someone would attempt to make a comparison based 
on death, injury and property damage claims information, the publicly 
available information is limited and not useful for comparisons, as 
recognized by the RMA. Tire manufacturers must provide separate reports 
by tire line, tire size, stock keeping unit, manufacturing plant and 
production period. 49 CFR 579.26. As a result, their reports will 
include numerous rows of data. In contrast, the numbers of incidents of 
deaths and injuries in the claims information submitted by tire 
manufacturers on December 1, 2003 are not numerous, particularly when 
compared to the numbers of sizes and models of tires.\13\ In addition, 
the absence of production data precludes the development of normalized 
rates (e.g., claims per 100,000 tires) that would be needed for 
comparisons.
---------------------------------------------------------------------------

    \13\ At the time that the RMA submitted its petition for 
reconsideration almost a full quarter of reportable early warning 
data was in the hands of the RMA's members.
---------------------------------------------------------------------------

    In any event, and perhaps because of these fundamental limitations, 
the RMA has not shown how the modest amount of data present in the 
submissions would be used in cross-company comparisons, who would 
perform them, or the competitive significance of those comparisons. Nor 
has the RMA addressed the fact that some smaller and lesser-known tire 
companies reported few to no death, injury, or property damage claims, 
which could readily prompt conclusions by potential consumers that it 
was not surprising that a small company received few claims and, 
therefore, that comparisons based on these early warning data do not 
substantially influence purchasing decisions.
    Nor do we find persuasive the RMA's suggestion that because 
information like the early warning data is often--but not always--
subject to protective orders in private litigation, it should be 
protected from disclosure under Exemption 4 of the Freedom of 
Information Act. Protective orders may be issued under a broad standard 
``to protect a party or person from annoyance, embarrassment, 
oppression, or undue burden or expense.'' See Fed. R. Civ. P. 26(c). 
Exemption 4 is narrower, and the courts have recognized that the 
standards applied to protective orders and under FOIA differ. See Burka 
v. HHS, 87 F.3d 508, 517 (D.C. Cir. 1996); Anderson v. HHS, 907 F.2d 
936, 946 (10th Cir. 1990).\14\
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    \14\ Moreover, as a practical matter, protective orders often 
are submitted on consent by the parties in a civil action, and the 
court does not see the documents or independently assess the 
consequences of revealing them to non-parties. Thus, the fact that 
courts have issued protective orders is not particularly meaningful 
in determining the confidentiality of documents under Exemption 4.
---------------------------------------------------------------------------

    Finally, the RMA contends that its members' claims information form 
compilations of information that are confidential. As noted in the 
final rule, the collection of specific information that, when assembled 
together, would reveal sensitive commercial information can be 
protected under Exemption 4. For example, in Trans-Pacific Policing 
Agreement v. United States Customs Service, 177 F.3d 1022 (D.C. Cir. 
1999), the court recognized that a compilation of complete commercial 
shipping code information that would reveal competitively sensitive 
information could be protected under Exemption 4.
    Not all compilations, however, meet these criteria. As noted above, 
the compilation of warranty, field report and consumer complaint data 
permits competitors to evaluate how consumers, suppliers and others in 
the market respond to various product-related decisions. Competitors 
may use the information (not otherwise available without substantial 
investment) to advance their own product offerings. The compilation of 
these categories of data reveals substantially more, both qualitatively 
and quantitatively, than the revelation of the various pieces of 
individual data.
    In contrast, the fatality, injury and property damage claims 
information is a collection of data points. While we believe these data 
will be useful in identifying possible safety problems worthy of 
investigation, the compilation of those data points does not confer 
competitive value to the data elements themselves. Nor does the RMA 
explain how competitors could use the claims information, whether 
individually or collectively, to advance their competitive advantage. 
Since the RMA's petition does not establish that disclosure of this 
early warning information will cause substantial

[[Page 21416]]

competitive harm, the agency will not alter its decision to release 
this information.\15\
---------------------------------------------------------------------------

    \15\ Nor has the RMA provided any new or convincing information 
suggesting that disclosure of claims information would impede the 
agency's defect program.
---------------------------------------------------------------------------

2. VIN and State (or Foreign Country) Information
    The Alliance requests that the agency expand its early warning 
reporting class determinations in Appendix C to cover two items of 
information provided in reports of incidents involving fatalities or 
injuries. See generally, 49 CFR 579.21(b)(2). First, it asks that VIN 
information included in fatality and injury claims data be accorded 
confidentiality because the VIN could be used to trace the identity of 
the vehicle owner(s). The Alliance provided information showing that 
individuals can be easily identified by using VIN data as the starting 
point and coupling this information with information from commercially 
available databases.
    Second, the Alliance requests that the identification of the state 
or foreign country where the incident occurred be treated as 
confidential. The Alliance argues, without providing separate 
justification, that in sparsely populated states, an individual could 
research local media outlets to determine the identity of the 
individuals involved in the incident.
    We have decided to add to Appendix C the last six digits of the VIN 
data in the information on deaths and injuries. We have decided not to 
do so with regard to information relating to the state or foreign 
country in which incidents occurred.
    VIN Information. Each VIN consists of 17 characters. In general, 
the first eight characterize the manufacturer and attributes of the 
vehicle including the make and type of vehicle (e.g., the relevant 
line, series, body, type, model year, engine type and weight rating). 
The ninth digit is a check digit. In the last eight characters, the 
first two represent the vehicle model year and plant of production, and 
the last six are the number sequentially assigned by the manufacturer 
in the production process. See 49 CFR 565.6 (detailing elements of the 
VIN code), SAE Standards J218 (passenger car identification 
terminology) and J272 (vehicle identification number systems).
    Under the final CBI rule, NHTSA's disclosure of fatality and injury 
data included the entire VIN. Based in part on our consideration of the 
Alliance's petition for reconsideration, we have decided to modify the 
rule to disclose the initial 11 characters of VINs and hold the 
remaining 6 characters confidential. The disclosure of the initial 11 
characters provides information on the vehicle identified in the claim 
or notice, beyond make and model information that is already available. 
See, e.g. 49 CFR 579.21(b)(2); see also 68 FR 44221-22. The release of 
this VIN information is not accompanied by a risk of violating an 
owner's privacy.\16\ However, based in part on the Alliance's petition 
for reconsideration, we will hold confidential the last six characters 
of the VIN because they can be used to obtain personal identifying 
information.
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    \16\ This redaction policy is consistent with the one followed 
by our Office of Special Crash Investigations.
---------------------------------------------------------------------------

    Following review of the Alliance's petition, the agency examined a 
widely available legal database--WESTLAW--and several websites that 
offered to provide personal information on individuals using the VIN of 
a vehicle for a nominal fee. The agency was readily able to determine 
the name, address, date of birth, and lien information of the vehicle 
owner using the full VIN. In view of this easy identification, the 
disclosure of full VIN information would jeopardize the personal 
privacy of individuals involved in EWR reports of fatalities and 
injuries arising from motor vehicle crashes.
    NHTSA is according confidentiality to the last six digits of VINs 
under FOIA Exemption 6, which protects personal privacy interests. 
Under Exemption 6, an agency engages in a balancing process. The first 
step in the process is an assessment of the privacy interests at stake. 
In Center for Auto Safety v. NHTSA, 809 F. Supp. 148 (D.D.C. 1993), the 
court recognized the privacy interests in the names and addresses on 
consumer complaints received by NHTSA. The same interests exist here. 
The second step is an assessment of the public interest. Under 
Exemption 6 the concept of public interest is limited to shedding light 
on the government's performance of its statutory duties. We note that 
the public will be able to review EWR information on claims for 
fatalities and injuries, including identification of the make, model 
and model year of the vehicle and the component or system implicated in 
the claim. Disclosing additional VIN information that would enable 
someone to identify the owner of the vehicle does not serve a public 
purpose. If disclosed, it would not answer the question of ``what the 
government is up to.'' Dep't of Justice v. Reporters Comm. for Freedom 
of Press, 489 U.S. 749, 773 (1989). See also National Ass'n of Retired 
Fed. Employees v. Horner, 879 F.2d 873, 879 (DC Cir. 1989) (the sought 
information must enable ``the public [to] learn something directly 
about the workings of the Government'') (emphasis in original). The 
final step in applying Exemption 6 is weighing the competing privacy 
and public interests against one another. As in Center for Auto Safety, 
the privacy of the persons who may be identified from the last six 
digits of VINs will be recognized and protected because there is no 
ascertainable public interest of sufficient significance or certainty 
to outweigh that right. 809 F. Supp. at 150.
    State and Foreign Country Information. We are denying that portion 
of the Alliance petition requesting protection for information relating 
to the state or foreign country in which incidents occurred. According 
to the Alliance, information relating to the location of an incident 
may allow interested parties to discover personal information about 
victims by perusing local newspapers or other reports relating to the 
event. While it is possible for the EWR information to be linked to 
other publicly available information, we do not believe that privacy 
interests are sufficiently jeopardized to justify withholding such 
information. As pointed out by the Alliance petition, the incidents of 
concern have already received some public attention and, therefore, 
personal information about those involved is likely already known on a 
local or state level. The disclosure of this information in the EWR 
reports is unlikely to shed much additional information into the public 
domain.
3. Common Green Tires
    The RMA asks the agency to clarify its position with regard to 
information submitted relating to ``common green'' tires and to create 
a class determination covering that reporting requirement. It notes 
that this particular issue was not addressed in the final CBI rule.
    The term ``common green'' refers to a basic tire construction used 
as the foundation for an array of different tire models and/or brands. 
This basic tire envelope is placed into different tire molds in the 
tire production process and serves as the foundation for tires with 
different tread patterns and different brand names. The early warning 
final rule defines ``common greens'' as 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). The early warning regulations

[[Page 21417]]

include a separate common green tire reporting requirement. As part of 
each quarterly report, each manufacturer of tires provides NHTSA with a 
list of common green tires and for each specific common green tire 
grouping, the listing includes relevant tire lines, tire type codes, 
stock keeping unit (``SKU'') numbers, brand names, and brand name 
owners. 49 CFR 579.26(d).
    The RMA explains that the disclosure of common green tire listings 
is likely to cause competitive harm because common greens reveal the 
relationships between tire groupings, providing competitors with the 
ability to determine a tire manufacturer's marketing and business plans 
and potentially its cost structures. Because common green information 
would reveal the identities of tires that have the same internal 
specifications, as well as the relationships between manufacturers and 
private brand name owners, the RMA argues that the disclosure of this 
information would cause tire manufacturers substantial competitive 
harm.\17\
---------------------------------------------------------------------------

    \17\ As explained in tire manufacturer letters seeking 
confidential status for common green lists submitted on December 1, 
2003, the disclosure of EWR ``common green'' information would allow 
competitors to assess a tire manufacturer's technical capabilities 
and marketing strategies, as well as tire production and mold design 
technology. In addition, competitors could use the ``common green'' 
information to determine a tire manufacturer's future product plans.
    A report submitted by Professor Michael D. Bradley that 
accompanied Cooper Tire's comments to the docket notes that common 
green tire information serves as the basis for tire line production 
and that the release of this type of information would provide a 
``complete and comprehensive'' picture of a tire company's 
production and marketing strategies. The report observes that the 
disclosure of this information would be equivalent to the release of 
a tire company's business plan.
---------------------------------------------------------------------------

    The agency did not specifically address ``common greens'' in the 
final CBI rule. We agree with the RMA that disclosure of ``common 
green'' information is likely to cause substantial competitive harm. 
The disclosure of ``common green'' lists would reveal to competitors a 
tire manufacturer's production strategies, marketing strategies, future 
product plans, and its tire production and mold design approach.
    In addition, ``common green'' identifier data are appropriate for a 
class determination under Appendix C. The common green is the basic 
envelope of tire production. The type of ``common green'' identifier 
information submitted under the EWR rule is the same for all 
manufacturers. The impact such information would have in the 
competitive market will not vary and individual consideration of each 
submission would result in identical determinations that disclosure is 
likely to lead to substantial competitive harm. Accordingly, we have 
added a class determination to Appendix C covering the submission of 
``common green'' identifier data pursuant to the early warning 
regulation.
4. Production, Warranty Claims and Adjustments, Field Reports and 
Consumer Complaints
    PCLG takes issue with the agency's class determination of 
confidentiality of EWR production data (for all products other than 
light vehicles), warranty claims information, field reports and 
consumer complaints. After reviewing the comments and the applicable 
law, the agency determined that release of this information was likely 
to cause substantial competitive harm and to impede the agency's early 
warning program. PCLG argues that all of this information should be 
publicly available.
    In reaching its determination, the agency balanced private and 
public interests consistent with Exemption 4. NHTSA considered the 
manufacturers' interest in legitimate protection from competitive harm 
as specified by Exemption 4 of FOIA and balanced the various public 
policy issues involved--the public's interest in disclosure and the 
extent of impairment that likely would follow from disclosure.
    PCLG asserts that the agency improperly applied these policy 
considerations, arguing principally that the information collected 
under the early warning program should be disclosed to allow the 
public, as well as the agency, to assess whether potential safety 
related defects exist. PCLG also asserts that the agency should not 
hold early warning information confidential without individual 
consideration of each manufacturer's competitive situation and whether 
disclosure will likely cause substantial competitive harm to that 
manufacturer. Similarly, PCLG asserts that in such reviews the agency 
should segregate any portion of the early warning data that will not 
cause competitive harm or impair the government's program. Finally, 
PCLG takes issue with the agency's application of the impairment prong 
of Exemption 4.
    PCLG's objection to the agency's approach closely parallels its 
argument that the agency lacks the legal authority to establish class 
determinations. PCLG advances the proposition that the agency must make 
individual decisions with regard to individual submissions of EWR data 
under FOIA.\18\ It also observes that the agency makes some information 
submitted by manufacturers in individual investigations of alleged 
defects public and disagrees with the agency's determination that the 
comprehensive compilation of early warning information is 
quantitatively and qualitatively different from the specific data 
provided by manufacturers in response to NHTSA Office of Defects 
Investigation (``ODI'') information requests in particular defect 
investigations.
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    \18\ While PCLG offered several cases to support its view, the 
cases did not support this broad proposition. The cases fairly point 
out that there needs to be an adequate basis for withholding 
information. NHTSA believes that there is adequate support for 
Appendix C to the CBI rule.
---------------------------------------------------------------------------

    As noted above, the early warning program is a unique government 
program. The information is being collected and analyzed 
electronically. Unlike most government programs, much of the data will 
never be directly relevant to any particular agency investigation or 
regulatory activity. The agency is unaware of any similar government 
database. In this context, cases reviewing particular competitive 
assessments under particular facts in light of a particular submission 
to the government shed no light on whether the wholesale disclosure of 
business information is likely to cause substantial competitive harm.
    Nor is this a situation, as with individual submissions like those 
in the course of defect investigations, that allows for the segregation 
of data beyond the categorizations the agency has already applied. The 
agency has already segregated the early warning data into the various 
categories of information to be provided and, as set forth in the final 
rule, considered each category separately. As a result, the agency 
determined that while some categories of early warning data were 
entitled to confidential treatment, other categories should not be. We 
do not believe it is possible to further segregate the data within each 
category, as each category contains from each manufacturer the same 
type of data presented in a required format. The early warning database 
is fundamentally different than individual submissions (such has those 
presented during defect investigations) in which confidential data is 
routinely redacted and the remainder of the submission is placed in the 
public file.
    PCLG takes issue with the agency's consideration of the potential 
of the release of comprehensive early warning data to cause competitive 
harm. PCLG challenges the notion that cross-

[[Page 21418]]

company comparisons that may arise from disclosure are of a nature 
falling within the purview of Exemption 4. According to PCLG, such 
analyses merely reveal the performance of products and present the 
public with the same kind of information available through popular 
magazines and from other public sources.
    PCLG submitted an Appendix to its petition for reconsideration 
containing numerous newspaper articles and other publicly available 
sources making cross-company comparisons or discussing vehicle 
performance issues. PCLG asserts that such information negates the 
agency's finding that disclosure of the compilation of data relating to 
raw warranty claim and consumer complaint information and field reports 
is likely to cause substantial competitive harm.
    The Appendix is not persuasive. The types of reports included in 
the Appendix are the result of largely anecdotal reports or limited 
data collection efforts. The public sources of information do not 
appear to remotely resemble, in breadth, subcategorization or objective 
underpinnings, the EWR warranty data. Unlike EWR data, they do not 
carry the imprimatur of being a comprehensive set of data collected 
directly by the manufacturers and submitted to the government for 
analytic review. Nor does PCLG's position consider the agency's 
concern, based on the comments in the docket, that disclosure will lead 
manufacturers to provide less warranty coverage, conduct fewer internal 
investigations and put fewer resources towards the receipt and 
resolution of consumer complaints. The result will be less information 
available to the agency's early warning detection program.
    While we do not find the general arguments persuasive, below we 
review each category of confidential information in response to the 
assertion that the agency lacked information from which it could make a 
determination whether disclosure likely would cause substantial 
competitive harm to the submitter of the EWR information or impair the 
government's program.
    a. Production Numbers. The final rule created a class determination 
for reports of production numbers for medium-heavy vehicles including 
buses, motorcycles, trailers, child restraint systems and tires--i.e., 
the manufacturers covered by the comprehensive EWR requirements, except 
for light vehicle manufacturers. Light vehicle production is reported 
publicly. As we explained:

    Many business interests discussed their efforts to maintain the 
confidentiality of their production figures. Harley-Davidson and MIC 
[the Motorcycle Industry Council] stated that production numbers by 
model have never been generally available in the motorcycle 
industry. Cooper Tire submitted an affidavit, further confirmed 
through RMA's comments, with regard to the competitive harm that 
disclosure of otherwise confidential production numbers would have 
in the tire industry. JPMA argued that disclosure of these data 
would provide new entrants and competitors in the child restraint 
industry with information about production capacities, sales and 
market performance not otherwise available in the absence of 
considerable investment in market research. Bluebird (busses, school 
buses and motor homes), Utilimaster (final stage walk-in vans and 
freight bodies for commercial use) and the AORC (occupant restraint 
systems and other components) also each stated that production 
numbers in their segment of the industry are confidential and likely 
to lead to substantial competitive harm if released.
    The comments substantiate that production numbers in many 
sectors of the automotive and equipment industries are competitively 
protected information, revealing otherwise unobtainable data 
relating to business practices and marketing strategies. [68 FR 
44221]

    The record amply supports the creation of a class determination on 
the production numbers for vehicles and equipment subject to EWR 
reporting, other than light vehicles. Production numbers from these 
other sectors are competitively sensitive data. For example, RMA 
explained that tire production numbers, which are reported by (among 
others) tire line, tire size, stock keeping unit and plant of 
production (49 CFR 579.26), were competitively sensitive and that their 
routine disclosure to the public through EWR submissions would, among 
other things, enable competitors to analyze their competitors' 
businesses. Cooper Tire, noting the competitively harmful effects that 
would accompany the disclosure of production data, emphasized that the 
intense level of competition within the tire industry and the size 
differences among competitors made the risk of substantial competitive 
harm high, particularly for smaller tire manufacturers that produce 
products for the replacement market. An accompanying economist's report 
noted that the tire industry is ``highly concentrated'' and that the 
disclosure of production numbers would reveal substantial information 
related to company marketing plans and strategies.
    PCLG's specific objections to the class determination for 
production levels rest on its broad assertions that the class 
determination is not supported by the factual record and is 
inconsistent with the agency's past practice to disclose production 
information. However, PCLG's petition neither addresses the record nor 
provides factual or expert rebuttal.
    PCLG further asserts that the agency's past practice has been to 
treat production numbers as confidential and provided an example to 
support its assertion. PCLG's assertion is inaccurate and is not 
supported by its example. As stated in the final rule, production 
numbers for manufacturers other than light vehicle manufacturers have 
been treated confidentially in the past on the basis that their 
disclosure is likely to cause substantial competitive harm to 
businesses engaged in these industries. 68 FR at 44221. Such an example 
is found in the Closing Report in ODI's investigation of certain 
Goodyear tires (PE 00-046). PCLG's example of past disclosure practices 
amounts to the release of warranty data, rather than production data, 
during the course of one defect investigation. This is of no bearing 
because investigation information is not comparable to that submitted 
under the EWR rule and because the confidentiality of warranty data is 
not determinative of the confidentiality of production data.
    PCLG's other and more generalized arguments do not require a 
different result. PCLG's arguments disputing the bases for the class 
determinations under Exemption 4--i.e., unwarranted product 
disparagement and competitor usage of data--do not refer or apply to 
production numbers.
    b. Warranty Claims and Adjustments. The final rule established a 
class determination for warranty claim numbers for vehicles and child 
restraint systems, and for warranty adjustments in the tire industry. 
As noted in the preamble, the disclosure of warranty data is likely to 
cause substantial competitive harm:

    [T]he warranty information required by the early warning 
reporting rule--that is, the number of claims associated with 
specific components and systems broken down by make, model and model 
year (with slightly different breakouts for tires and child 
restraint systems)--is likely to provide competing manufacturers 
with sufficient information about the field experience of those 
components and systems to provide commercial value to competitors 
who may be deciding whether to purchase similar components, the 
price at which to purchase those components and which suppliers to 
choose. * * *
    While manufacturers are likely to explore the practices and 
policies of their competitors when reviewing any publicly available 
warranty claims information, the public is more likely simply to 
rely on generic cross-company comparisons. The warranty claims 
information may be used as

[[Page 21419]]

part of vehicle comparisons, even though the warranty terms and 
conditions and corporate warranty practices may differ. As a result, 
the potential for the warranty claims information to give rise to 
misleading comparisons and cause substantial competitive harm is 
also strong.
* * * * *
    [W]e have determined that the early warning reporting of 
warranty information . . . is entitled to confidential treatment 
because its disclosure is likely to cause substantial competitive 
harm.
    The warranty data required by the early warning reporting 
regulation are also entitled to confidential treatment because their 
disclosure is likely to impair the agency's ability in the future to 
obtain and use reliable warranty information as part of its program 
to identify potential safety related defects. Warranty claims data--
which begin to accumulate as soon as vehicles are sold and continue 
for the length of any given warranty policy--will be a significant 
indicant of potential defects. The quarterly warranty claims 
reports, combined initially with the historical seeding material, 
will help the agency to identify trends involving particular 
equipment and systems or components in a particular make, model and 
model year of a given product. [68 FR 44222-23]

    The record supports NHTSA's conclusion that warranty data have a 
variety of direct competitive uses. For example, the Alliance, whose 
members produce light motor vehicles, medium-heavy motor vehicles and 
motorcycles, through a report prepared by AutoPacific, explained that:

    Actual working experience at various automotive companies 
confirms that comparative component warranty experience, reliability 
experience, and durability experience strongly influences component 
pricing and sourcing decisions. . . . [I]f one original equipment 
manufacturer purchases a component and obtains field experience with 
that component, it can be expected to use that information to make 
decisions about future purchases and the price it will pay. 
Providing that field experience to other manufacturers effectively 
gives them a ``free ride'' at the expense of the first manufacturer. 
[Comments, Attachment A, at 1]

    The Alliance's comments further noted the particular value that EWR 
warranty data have by detailing the manner in which they may be 
employed both by current and potential competitors who may decide to 
enter into the U.S. market. In addition, GM explained that warranty 
data provide an index of manufacturer costs. An article referenced in 
the preamble to the final rule described the direct use of warranty 
data by manufacturers to help them analyze and identify problems 
encountered in their vehicle fleets. Gregory White, ``GM Takes Advice 
from Disease Sleuths to Debug Cars,'' Wall Street J., April 8, 1999 at 
B1 (describing GM plan to use warranty data to detect vehicle problems 
and eliminate claims and noting statistical analysis employed by rival 
DaimlerChrysler to accomplish the same).
    The TMA, representing medium and heavy truck manufacturers, 
explained that the disclosure of comprehensive warranty data such as 
that collected under the EWR rule would provide competitors with 
previously unavailable market intelligence that is of much greater 
breadth and depth than the information contained in typical information 
submissions to the agency. RMA expressed concerns that the disclosure 
of warranty adjustment data would reveal different policies among tire 
manufacturers. Similarly, JPMA explained that competing child restraint 
manufacturers could use this information to their advantage and to the 
detriment of the submitter and it stressed that the data would provide 
competitors with real time, ongoing competitive information on a 
company's production capacities, sales and marketing performance.
    PCLG's petition does not rebut the factual premises in the record 
of NHTSA's class determination on warranty claims, which includes 
warranty adjustments in the tire industry. Instead, PCLG attempts to 
make a case in favor of disclosure by submitting information on the 
agency's determination that certain information supplied by a vehicle 
manufacturer within the context of a specific investigation by ODI was 
not confidential. That sample submission, however, does not involve or 
represent EWR information.
    As discussed at length in the final CBI rule, there are substantial 
differences between data submitted pursuant to the EWR rule, which 
contain information about the entire product lines of a manufacturer, 
and the limited and narrow information submitted by a manufacturer in 
response to an agency information request issued during the course of 
an ODI investigation. PCLG does not address or deny these inherent 
differences.
    More generally, PCLG advances a number of arguments to support its 
view that EWR warranty numbers are not confidential. As one broad 
theme, PCLG disputes that a competitor's use of EWR warranty data to 
assess field experience for purposes such as durability assessments, 
purchasing, pricing and supply decisions, which PCLG calls avoiding 
development costs, is an adequate basis for treating these warranty 
data as confidential. In support of its position, PCLG asserts in part 
that competitive harm cannot be based on possible competitor use of 
data that identify safety problems in vehicles on the market. Both the 
implicit factual premise for this assertion and the legal basis for it 
are unfounded. Factually, EWR data are not data on safety problems. EWR 
warranty data reflect payment of warranty claims involving various 
systems and components, such as the power train and seat, without the 
identification of any particular component or any problem. The fact 
that a manufacturer made warranty payments for vehicles, tires or child 
restraints does not mean that these products contain safety-related 
defects. NHTSA's consideration of the data in the early warning review 
process does not suggest otherwise. NHTSA is using raw EWR warranty 
claims data as a tool in assessing whether a defect potentially exists. 
See 67 FR 45852 (July 10, 2002). The agency is reviewing these data for 
trends. Most data are not likely to indicate a potentially problematic 
trend. As to data appearing to indicate possible trends, ODI may make 
inquiries to manufacturers. If the agency's assessment of all available 
information, including (where appropriate) the manufacturer's response 
to its inquiries, indicates that an investigation is warranted, the 
agency will open an investigation. 67 FR at 45865. Thus, contrary to 
PCLG's suggestion, EWR warranty data do not in themselves identify 
safety problems.
    Legally, PCLG contends that the EWR warranty information is being 
withheld to protect the manufacturer's reputation or ability to 
continue to sell the equipment. PCLG argues that the harm resulting 
from such disclosures is not a cognizable competitive harm under 
Exemption 4 and that revealing safety problems does not result in an 
unfair advantage to competitors, citing Public Citizen Health Research 
Group v. FDA, 704 F.2d 1280 (D.C. Cir. 1983). In that case, the court 
remarked in a footnote that competitive harm in the FOIA context is 
limited to the harm flowing from the affirmative use of proprietary 
information by competitors and that competitive harm should not be 
taken to mean simply any injury to competitive position as might flow 
from embarrassing publicity attendant upon public revelations 
concerning, among others, violations of safety laws.
    PCLG's reliance on that proposition is misplaced. The EWR warranty 
data are being withheld because of the competitive harm that likely 
would flow from their disclosure, as discussed above, and not because 
of concerns over the manufacturer's reputation or ability to continue 
to sell the equipment. See 68 FR 44222-23. In view of the

[[Page 21420]]

competitively sensitive nature of the data, under Exemption 4 the data 
are confidential notwithstanding that withholding them would, as viewed 
by PCLG, save the manufacturer from the noncognizable harm of 
embarrassment. This conclusion is fully supported by a case that 
specifically clarified Public Citizen. In Occidental Petroleum v. SEC, 
873 F.2d 325, 341 (D.C. Cir. 1989), the court made clear that the 
possibility that some noncognizable harm would flow from disclosure is 
not dispositive under Exemption 4, since an agency's role is to 
determine whether non-public information contained in documents is 
competitively sensitive, for whatever reasons.
    PCLG also asserts that the release of the EWR warranty claim counts 
would provide significant information about component performance only 
in extreme cases and concluded that competitive injury supporting a 
class determination would rarely arise. We disagree. As pointed out in 
the Alliance's comments, these data are competitively sensitive on 
concerns such as component and system performance and reliability. 
Competitors and potential consumers would utilize these data, 
regardless of whether they reflect potential problems, the likelihood 
of few problems or otherwise. The fact that consumers would use the 
information to make comparisons, as a supplement to other sources of 
comparative information in purchasing decisions, was recognized in 
PCLG's comments. It simply ignored the fact that manufacturers could 
use the same information to the disadvantage of a competitor in the 
manner described above.
    In the alternative, PCLG observes that even if the data reveal 
competitively valuable and sensitive information on good or bad 
performance, they may be a matter of public knowledge, there may be no 
competition on a system or component and there must be a showing that 
the competitors could not obtain the information at a reasonable cost. 
Whatever public knowledge there may be about a problem (e.g., press 
anecdotes), as discussed above it would not be comparable to the EWR 
warranty claim submissions. Moreover, the motor vehicle, equipment, 
tire and child restraint businesses are highly competitive, and the 
record shows that the EWR warranty data are not available and would not 
be available at a reasonable cost. PCLG does not show otherwise.
    PCLG adds that the information must have commercial value and 
argues that information related to components uniquely suited to a 
particular vehicle could not have competitive value. However, the value 
of the information is not dependent on whether a specific component has 
a single or multiple vehicle applications. EWR information provides 
insight into a broad range of issues, including field experience, 
customer satisfaction and cost decisions made by companies in paying 
warranty claims. This is a type of information that Exemption 4 was 
designed to enable the government to protect.
    In another broad theme, PCLG asserts that NHTSA based its class 
determination on the noncognizable harm of unwarranted product 
disparagement arising from misleading company comparisons of warranty 
claims information. In the preamble to the final CBI rule, we 
recognized that warranty claims information may be used as part of 
vehicle comparisons, even though warranty terms and corporate warranty 
policies may differ, resulting in a strong potential for warranty 
claims information to give rise to misleading comparisons and cause 
substantial competitive harm. See 68 FR 44222-23. PCLG requests 
reconsideration of NHTSA's conclusions that the use of cross-company 
comparisons could result in substantial competitive harm.
    First, PCLG asserts that NHTSA ignored well-established data 
sources, such as Consumer Reports, which is available to consumers 
seeking to make cross-company comparisons. It contends that consumers 
would treat the EWR warranty data as another source of information and 
that professionals would recognize the limitations of the data and 
evaluate them in context. In light of these other sources of 
information, PCLG discounts the competitive effect of release of the 
information. However, PCLG does not identify the comparisons that would 
be made using existing publicly available information or establish the 
comparability of public data to EWR warranty data. As discussed above, 
it appears that the public sources of information do not remotely 
resemble the EWR warranty data. Accordingly, we do not accept PCLG's 
theory.
    Second, PCLG asserts that insofar as the rule was based on 
competitors' use of their rivals' information to make misleading 
comparisons and engage in unwarranted product disparagement, these 
comparisons are not a proper ground for withholding EWR data under 
Exemption 4. PCLG notes that laws preclude misleading marketing and the 
impact from misleading marketing will not be so widespread as to result 
in significant competitive harm. We believe that PCLG misunderstood 
NHTSA's rationale. The agency based the rule in part on the competitive 
harm that flows from the use of EWR warranty data by competitors and by 
consumers. We did not base it on misleading and unlawful product 
disparagement by competitors.
    Third, PCLG argues that the possibility that information may be 
misinterpreted has never been recognized as a justification for 
according confidentiality to information. It notes that virtually all 
data can be misinterpreted and data cannot be withheld on this basis. 
However, in Worthington Compressors, Inc. v. Costle, 662 F.2d 45, 53 
(D.C. Cir. 1981), the court permitted the consideration of consumer 
misuse of commercial information that is otherwise unavailable. 
Accordingly, NHTSA was authorized to treat EWR warranty data as 
confidential on this alternative basis.
    In its final assertion on unwarranted product disparagement, PCLG 
contends that the harm occurring from the disclosure of these data 
amounts to adverse public reaction, which is not a cognizable harm 
under Exemption 4. See Public Citizen Health Research Group v. FDA, 964 
F. Supp. 413, 415 n.2 (D.D.C. 1997). Factually, we adhere to our views 
of the harm as stated in the preamble to the final rule and disagree 
with PCLG's attempt to recharacterize the harm and eliminate the harms 
we identified. Since the EWR warranty data are competitively sensitive 
for a valid reason under Exemption 4, other potential consequences such 
as adverse public reaction, do not dictate that we treat the 
information as non-confidential. Occidental Petroleum v. SEC. The final 
CBI rule is based on such valid determinations, as described in the 
preamble.
    PCLG's third broad theme is that the agency did not satisfy the 
impairment prong of Exemption 4 in its assessment of the release of EWR 
warranty data. Under the impairment prong, an agency may withhold 
information that, if released, ``would impair the effectiveness of a 
government program.'' Public Citizen v. NIH, 209 F. Supp. 2d 37, 52 
(D.D.C. 2002). See also 9 to 5 Organization for Women Office Workers v. 
Federal Reserve System, 721 F.2d 1, 11 (1st Cir. 1983), and Appendix B 
to the final rule's preamble.
    NHTSA carefully considered the value of warranty claim data to the 
defect identification program and the impact that disclosure would have 
on manufacturer policies and decided that EWR warranty data should not 
be disclosed. The importance of warranty information had been 
explained:


[[Page 21421]]


    We have often found warranty claims to be more valuable than 
customer complaints because the customer has identified a problem, a 
repair facility . . . has performed a repair, and the manufacturer 
has paid for some of or all the repair. This information is valuable 
to NHTSA as an early warning tool in assessing whether a defect 
potentially exists. The principal limit on the value is that after 
the expiration of the warranty . . ., this information is no longer 
generated. However, at times these programs are extended when there 
are problems with the product and at times manufacturers also pay 
for repairs under ``good will'' programs. We have found that ``good 
will'' actions provide valuable information in that manufacturers 
may choose to address a perceived problem by extending or 
liberalizing the terms of a warranty rather than by conducting a 
full recall, or by formally extending the warranty period. In order 
to aid in the early discovery of potential defects, the agency 
believes that the number of good will claims should be reported 
along with the more ``traditional'' warranty claims. [67 FR 45852 
(July 10, 2002)]

    Manufacturers with generous warranty or good will programs will 
have a higher number of warranty claims than they would have with less 
generous programs, and releasing these data would create the perception 
that these manufacturers' products have relatively more problems.\19\ 
Disclosure would encourage manufacturers to restrict more generous 
warranty and good will programs in order to report lower warranty 
numbers data. The restriction of warranty programs and consequent 
reduced reporting will reduce the amount of warranty information that 
the agency may consider. This would impair the agency's ability to 
determine whether a defect trend in a particular line of vehicles, 
equipment or tires exists, as well as potentially increasing the 
inconvenience to consumers. 68 FR at 44222-23. These effects are 
supported by comments in the record, including those from the Alliance, 
the Tire Industry Association (``TIA''), the Association of 
International Automobile Manufacturers (``AIAM''), and Workhorse.
---------------------------------------------------------------------------

    \19\ The term ``good will'' refers to those repairs that are 
``paid for by the manufacturer, at least in part, when the repair or 
replacement is not covered under warranty, or under safety recall 
reported to NHTSA under part 573 of [Chapter 49].'' 49 CFR 579.4(c).
---------------------------------------------------------------------------

    PCLG asserts that the TREAD Act requires the submission of EWR 
data, which makes NHTSA's claim of impairment difficult to justify. 
This comment misses a critical underpinning of EWR reporting. While the 
TREAD Act authorizes the agency to compel manufacturers to provide data 
that they already collect, it explicitly precludes NHTSA from requiring 
the submission of information not in the possession of the 
manufacturer. 49 U.S.C. 30166(m)(4)(B).\20\ It also does not authorize 
NHTSA to require good will repairs and does not restrict a 
manufacturer's discretion to set or reduce warranty coverage or good 
will repairs.
---------------------------------------------------------------------------

    \20\ This section provides that the EWR regulations ``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.''
---------------------------------------------------------------------------

    PCLG contends that other factors may influence a manufacturer's 
decision to provide extensive warranties, making the likelihood of 
impairment remote. We recognize that customer-oriented factors have a 
significant influence on the scope and extent of warranty programs. 
However, we agree with the manufacturers that publication of the EWR 
data would give some manufacturers ``black eyes'' and that to a notable 
degree it is likely they would alleviate this problem, and improve 
sales and profits, by limiting warranty coverage, including good will 
payments. This would reduce the numbers of claims in the EWR warranty 
database, particularly toward the end of a warranty period and beyond, 
when components often break. ODI's analysis of warranty data to 
identify possible defects, which is predicated on substantial numbers 
to detect trends, would be impaired, as would its use in defect 
investigations. The agency thus believes that the risk of impairment 
associated with the wholesale disclosure of information such as 
warranty data is sufficient to justify the agency's application of the 
impairment prong of Exemption 4. Information in the record adequately 
supports NHTSA's conclusion. See, e.g. Comments from the Alliance, TIA, 
AIAM, and Workhorse.
    PCLG adds that under the impairment prong there must be a rough 
balancing of the importance of the information and the extent of the 
impairment against the public interest in disclosure. See Washington 
Post v. HHS, 690 F.2d 252, 269 (D.C. Cir. 1982); Washington Post v. 
HHS, 865 F.2d 320, 326-27 (D.C. Cir. 1989). It states that this 
balancing is not in the record.
    The importance of warranty claims data is explained in the record. 
The customer has identified a problem, a repair facility has performed 
a repair, and the manufacturer has paid for some of or all the repair 
during or after the warranty period. Separately, by model and model 
year, the numbers of warranty claims, by system and component, are 
reported to NHTSA. The magnitude of the numbers is important to the 
agency, as in our screening we will look for trends based in part on 
relatively high numbers. We believe that if warranty data were 
disclosed, given manufacturers' ability to set warranty coverage and to 
authorize good will repairs, warranty and good will coverage would be 
reduced and our ability to detect potential problems would be 
diminished. The resulting impairment to NHTSA would be substantial.
    On the other hand, the public interest in disclosure of warranty 
information is limited. Warranty data are simply payment data. Standing 
alone, the EWR data simply provide numbers of warranty claims payments, 
by system or component. They do not identify the particular part or a 
problem. Based on EWR warranty data alone, we believe it is not 
possible to accurately identify a safety-related defect in a particular 
product.
    PCLG also argues that data pertaining to older products, and by 
extension older technology, cannot qualify for protection under 
Exemption 4. This argument, however, ignores the baseline, competitive 
value of older data. For example, older information forms useful 
baselines for comparisons, which can be valuable in evaluating whether 
new technology is more durable than older technology. PCLG's argument 
also ignores the impairment concerns we identified in the final rule. 
Consequently, the agency believes that applying the class 
determinations set forth in Appendix C to older data continues to have 
merit.
    Finally, the competitive value of these data as a whole, for 
numerous separate reasons discussed above, also resolves the issues 
raised by PCLG on segregating EWR warranty data. The data cannot be 
segregated without revealing competitively sensitive information. PCLG 
offers no suggestions on how these or other EWR data could be 
segregated to avoid the concerns we identified in the preamble to the 
final rule and above.
    c. Field Reports. The final rule created a class determination of 
confidentiality for EWR field reports. Under the EWR rule, certain 
vehicle and child restraint systems manufacturers must report the total 
number of field reports they receive from their employees and 
representatives, and from dealers and fleets, that are related to 
problems with certain specified components and systems. In addition, 
these manufacturers must submit copies of field reports, except those 
received from dealers.

[[Page 21422]]

    As explained in the preamble to the final CBI rule, field reports 
reflect the in-use experience of a manufacturer's product, identifying 
specific problems encountered in the field not otherwise available to 
competitors. This information allows manufacturers to conform future 
design and production to field experience. Because the disclosure of 
this information would enable a company to improve its products without 
the need to invest in market research, engineering development or 
actual market experience, these data have substantial commercial value. 
Release of this information would reveal to competitors product 
features, components and systems which have met with consumer 
acceptance (and which have not) as well as what problems may be 
associated with certain components and systems. Using field reporting 
data and reports themselves, a competitor may determine areas of 
importance to a manufacturer (whether potentially related to safety or 
not) and enable a competitor to note the expected experience from a 
particular component or system.
    The record supports the confidentiality of field report 
information. For example, the Alliance stated that a wholesale 
disclosure of field report data would enable industry-wide comparisons 
of component performances. AIAM noted that field reports would provide 
useful information on the manufacturing processes and cost structures 
to competitors without having to conduct the research to develop the 
information independently. The Truck Manufacturers Association 
(``TMA'') stated that disclosing field report data would reveal 
unobtainable market intelligence about a manufacturer and the 
operational status of its customers' vehicle fleets. Blue Bird 
indicated that field report data would assist competitors in conducting 
market research and strategic planning. It emphasized that the 
disclosure of these reports could compromise customer fleet operations. 
Although it generally questions the sufficiency of the record, PCLG 
does not address this or other record information in its petition.
    In addition to causing substantial competitive harm, it is likely 
that the disclosure of field report information would reduce the field 
report data received by NHTSA, both in terms of the number of reports 
and their depth of content. 68 FR 44224. Comments in the record bear 
this out. TMA stated that disclosure of field report information would 
likely lead to the creation of fewer and less informative field reports 
and a consequent reduction in the quality of information submitted to 
NHTSA. Similarly, the AIAM expressed concern about diminished 
thoroughness and candor if they are disclosed to the public. Blue Bird 
stated that NHTSA can reasonably anticipate that manufacturers would 
take measures to minimize field report information if disclosed. This 
record information supports NHTSA's conclusion that under the 
impairment prong of Exemption 4, the agency may hold field report 
information confidential to ensure the quantity and quality of 
information it receives during the EWR process.
    In general, PCLG's petition mentions field reports along with 
warranty claims, without a particular discussion of field reports. See 
PCLG Petition for Reconsideration at 7, 9-10. Accordingly, in response, 
we refer the reader to the discussion pertaining to EWR warranty claims 
above. In addition, the following supplements the discussion above, 
with regard to field reports.
    NHTSA's ODI has reviewed numerous field reports over the years. 
While they vary considerably in nature and quality, we often have found 
manufacturer field reports to be technically rich, although some, 
particularly by dealers, are less so. See 67 FR 45856. NHTSA also has 
held numerous field reports obtained in investigations confidential.
    Like EWR warranty claim data, field report data are not safety 
data. Field reports include reports on possible problems. However, the 
problems may merely be alleged by an owner of a vehicle or may be real. 
The perceived or actual problems addressed may involve performance that 
does not meet the expectations of the owner, but may not be 
significant. They may or may not be safety-related.
    NHTSA also balanced the importance of field reports and the extent 
of the impairment to the government against the public interest in 
disclosure. The importance of field reports is well established. By 
definition, an alleged failure, malfunction, lack of durability or 
other performance problem has been identified in a written 
communication to the manufacturer from one of its employees, 
representatives, dealers, or a fleet. 49 CFR 579.4(c). Under the EWR 
reporting program, the numbers of field reports, separately, by model 
and model year, and by system and component, are reported to NHTSA. The 
magnitude of the numbers of field reports is important to us, as in our 
screening we will look for trends based in part on relatively high 
numbers. These trend may result in inquiries to the manufacturers. We 
believe that, given manufacturers' substantial control over the 
direction of field activity and the preparation of field reports, if 
the numbers of field reports were disclosed to the public, the numbers 
of field reports would be reduced considerably and, as a consequence, 
our ability to detect potential problems would be highly diminished, 
causing a substantial impairment to the agency.
    On the other hand, the public interest in disclosure of field 
report numbers is limited. Standing alone, the EWR field report numbers 
simply indicate that there was a reported problem, by system or 
component. They do not identify the particular part or a problem. Based 
on EWR data alone, it is not possible to accurately identify a safety 
problem. Given these limitations, the public interest in disclosure is 
small. Thus, the impairment prong balancing weighs in favor of 
nondisclosure of field report data.
    The field reports themselves are very important to the government. 
They provide text that is not conveyed by the numerical reports. The 
views of manufacturers' engineers in reports are often helpful to us. 
If they were disclosed, manufacturers would react by decreasing the 
number of reports generated and the level of detail contained in these 
reports. Without them, we often would not gain a full understanding of 
the issue, at least not without a steep and time-consuming learning 
curve. We recognize that some of the field reports would be of interest 
to some members of the public. On balance, we are in a better position 
to address potential defects with as robust a set of field reports as 
possible, which benefits the public at large. Accordingly, NHTSA is 
justified in withholding EWR field reports under the impairment prong.
    d. Consumer Complaints. The final CBI rule created a class 
determination of confidentiality covering EWR consumer complaints. 
These include communications from consumers that express 
dissatisfaction with a product, note any actual or potential defect or 
any event allegedly caused by an actual or potential defect, or that 
relate to that product's unsatisfactory performance but exclude claims 
or notices involving a fatality or injury. 49 CFR 579.4(c).
    Consumer complaints provide information on the performance of 
products based on consumer feedback. They reveal which product 
features, components and systems have met with consumer acceptance (and 
which have not) and what perceived problems may be associated with 
particular components and systems. As noted in the preamble to the 
final CBI rule, the collection of consumer complaint data

[[Page 21423]]

is subject to company policies. For example, Harley-Davidson stated 
that it aggressively seeks consumer feedback while others may seek it 
but to a lesser degree. AIAM stated similarly that manufacturers may 
have consumer complaint processes that vary in efficiency.\21\
---------------------------------------------------------------------------

    \21\ The commercial value of consumer complaint data is well 
recognized. See e.g., 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) 
and 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).
---------------------------------------------------------------------------

    The disclosure of EWR consumer complaint information is likely to 
discourage companies from actively pursuing consumer complaints and to 
lead companies to limit their ability to receive consumer feedback. The 
fewer inputs that a company receives, the less reliable the information 
available to it and the less useful the data is to NHTSA to evaluate 
the field experience of a product. EWR consumer complaint data are 
particularly important to NHTSA in light of the fact that the agency 
commonly receives far fewer complaints than manufacturers, field report 
numbers are but a fraction of complaint numbers, and the warranty data 
are limited after warranties expire. The disclosure of consumer 
complaint data and attendant likely reduction in consumer complaint 
data would threaten the agency's ability to obtain robust complaint 
data.
    Consumer complaint data are competitively sensitive as well. The 
data would provide competitors with information on the performance of 
not only a particular vehicle but also of key, individual components. 
The EWR complaint data would provide information on product acceptance, 
perceived problems and vehicle and equipment systems that a 
manufacturer deems important. In view of their commercial value on 
sensitive performance and market issues, the disclosure of EWR consumer 
complaint data would cause substantial competitive harm to the 
manufacturer. Moreover, as with warranty data, actual and potential 
consumers could make cross-company comparisons, which would further 
result in competitive harm.
    The record supports maintaining the confidentiality of consumer 
complaint information. For example, the Alliance noted the value of EWR 
data, including complaints, in revealing customer satisfaction and 
manufacturer cost information. PCLG's petition provides no factual 
rebuttal.
    While PCLG accurately noted that NHTSA releases consumer complaint 
data in individual investigations, these limited disclosures with 
respect to specific models and model years are not comparable to the 
wholesale, industry-wide information comprising EWR data. As such, 
disclosing EWR complaint data would provide a competitor with 
commercially valuable information without making the necessary 
investment in research ordinarily required if the information were not 
made readily available. This point was echoed by a number of 
manufacturers, including the Juvenile Products Manufacturers 
Association (``JPMA'') (complaints reveal operational marketing 
strengths and weaknesses to expose company vulnerabilities) and AIAM 
(wholesale complaint disclosure eliminates the risks associated with 
producing and marketing a particular technology).
    In general, PCLG's petition mentions consumer complaints along with 
warranty claims, without a particular discussion of consumer 
complaints. See PCLG Petition for Reconsideration at 7, 9-10. 
Accordingly, in response, we refer the reader to the discussion 
pertaining to EWR warranty claims above. In addition, the following 
supplements the discussion above, with regard to consumer complaints.
    Like EWR warranty claim data, consumer complaints are not 
necessarily related to safety issues. Consumer complaints include 
expressions of dissatisfaction and claims of unsatisfactory performance 
of a product as well as assertions about an alleged defect. The 
problems may merely be alleged by an owner of a vehicle or may be real. 
The perceived problems addressed may involve performance that does not 
meet the expectations of the owner, but may not be significant. They 
may or may not be safety-related.
    NHTSA also balanced the importance of consumer complaints and the 
extent of the impairment to the government against the public interest 
in disclosure. The importance of complaints is well-established. The 
magnitude of the numbers of complaints is important to us, as in our 
screening we will look for trends based in part on relatively high 
numbers. We believe that, given manufacturers' substantial control over 
information collection, if the numbers of consumer complaints were 
disclosed to the public, it is likely that the numbers of consumer 
complaints would be reduced considerably and, as a consequence, our 
ability to detect potential safety problems would be substantially 
diminished.
    On the other hand, the public interest in disclosure of consumer 
complaints is limited. Standing alone, they simply indicate consumer 
dissatisfaction or perception of a potential or actual defect, by 
system or component. They do not identify the particular part or a 
problem. Based on complaint data alone, it is not possible to identify 
a safety defect in a particular product. Thus, the impairment prong 
balancing weighs in favor of nondisclosure of consumer complaint data.
    Further, as indicated in our discussion on EWR warranty data, the 
legal framework established by Worthington Compressors permits the 
consideration of possible consumer misuse of commercial information in 
determining the confidentiality of information under Exemption 4. In 
this instance, the record supports our view that consumer misuse of EWR 
complaint data is likely to occur. Comments from the Alliance 
(disclosure would facilitate misleading comparisons), AIAM 
(misleadingly high numbers might be due to differences in collection 
policies), JPMA (data have a great potential to mislead consumers) and 
others describe the manner in which these data are subject to misuse.

F. Data Quality Act

    The RMA asserts that the Data Quality Act provides an independent 
basis to prohibit the disclosure of the EWR data the agency determined 
is not within the purview of Exemption 4. The RMA believes that the 
agency's release of EWR data would reasonably suggest to the public 
that the agency agrees with the data and would be relied on by the 
public as official NHTSA information. The RMA asserts the EWR 
information is subject to the Data Quality Act because it is factual 
data prepared by third parties, and in the RMA's opinion, not covered 
by any of the 12 exceptions contained in the DOT guidelines. The RMA 
also argued that the final rule does not meet the Data Quality Act's 
``utility'' requirement and as written would not present manufacturers' 
data in an accurate, clear, complete and unbiased manner and in a 
proper context.
    We disagree. The early warning program is not subject to the 
requirements of the Data Quality Act because it falls within an express 
exemption. The OMB guidelines define the dissemination of information 
as agency initiated or sponsored

[[Page 21424]]

distribution of information to the public, but does not include 
responses to requests for agency records under the Freedom of 
Information Act, the Privacy Act, the Federal Advisory Committee Act or 
other similar law. (67 FR 8460). Thus, the Data Quality Act does not 
apply to data that the agency is required to disclose under FOIA but 
only to information that the agency discloses as part of an agency-
initiated or sponsored dissemination of information.
    Consistent with OMB's guidance, the Department of Transportation 
developed a set of guidelines on information dissemination, which 
includes an exception for ``responses to requests under FOIA, Privacy 
Act, the Federal Advisory Committee Act or other similar laws.'' \22\ 
The information not covered by a class determination of 
confidentiality, or otherwise protected by a FOIA exemption, must be 
released under FOIA.
---------------------------------------------------------------------------

    \22\ DOT's Information Dissemination Quality Guidelines, at 12 
(Effective Oct. 1, 2002). The DOT guidelines are available for 
public inspection at http://dms.dot.gov (click on the ``Data 
Quality'' link and then ``guidelines'').
---------------------------------------------------------------------------

    The process established by part 512 allows the agency to make 
available to the public information subject to FOIA by determining in 
advance which information is entitled to protection under a FOIA 
exemption. The FOIA provides the analytic foundation for the 
determination of which data will be publicly available and which will 
be protected from public disclosure. Accordingly, this information 
qualifies under the FOIA exception created by the OMB guidelines.\23\
---------------------------------------------------------------------------

    \23\ The FOIA mandates that the agency make broadly available 
information that has already been the subject of a FOIA request 
granted by the agency. An agency make available for public 
inspection and copying ``records * * * which have been released to 
any person [under FOIA] and which, because of the nature of their 
subject matter, the agency determines have become or are likely to 
become the subjet of subsequent requests for substantially the same 
records.'' 5 U.S.C. 552(a)(2)(D). In addition, under the the 
Electronic-FOIA Amendment of 1996, the information, if created after 
November 1, 1996, must be made available in an electronic format to 
the public. 5 U.S.C. 552(a)(2)(E).
---------------------------------------------------------------------------

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. 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. This 
rulemaking document will not change the impact of the final rule.

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 rule does not 
have a significant economic impact on a substantial number of small 
entities. Therefore, a regulatory flexibility analysis is not required 
for this action. This final rule imposes no additional obligations on 
the submitters of information to NHTSA beyond those otherwise required 
by the Vehicle Safety Act and the early warning reporting regulation 
with respect to the submissions of requests for confidentiality. This 
final rule addresses the agency's treatment of early warning reporting 
data and simplifies procedures for all submitters, including small 
entities, when submitting information to the agency. The rule protects 
from disclosure early warning reporting information found likely to 
cause competitive harm. It permits the disclosure of that early warning 
information determined neither to cause competitive harm if released 
nor to impair the ability of the government to obtain the information 
in the future.

C. National Environmental Policy Act

    NHTSA has analyzed this rule for the purposes of the National 
Environmental Policy Act and determined that it does not have any 
significant impact on the quality of the human environment.

D. Executive Order 13132 (Federalism)

    The agency has analyzed this rulemaking action in accordance with 
the principles and criteria set forth in Executive Order 13132 and has 
determined that it does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The rule has no substantial 
effects on the States, or on the current Federalism-State relationship, 
or on the current distribution of power and responsibilities among the 
various local officials.

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 rule will 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 12778 (Civil Justice Reform)

    This rule will not have any preemptive or retroactive effect. This 
action meets applicable standards in sections 3(a) and 3(b)(2) of 
Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden. The rule does not require 
submission of a petition for reconsideration or other administrative 
proceedings before parties 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.). These 
requirements were approved through February 28, 2005. This final rule 
does not revise the existing currently approved information collection 
under Part 512.

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 regulatory action does not 
meet either of these criteria.

I. Data Quality Act

    Discussion of the impact of this rule and the Data Quality Act are 
discussed in the analysis contained in the preamble above. For the 
reasons discussed in that section, any dissemination of information 
pursuant to this regulation will not be subject to the Data Quality 
Act.

J. 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

[[Page 21425]]

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 practice and procedure, Confidential business 
information, Freedom of information, Motor vehicle safety, Reporting 
and recordkeeping requirements.

0
In consideration of the foregoing, the National Highway Traffic Safety 
Administration amends 49 CFR Chapter V, Code of Federal Regulations, by 
amending part 512 as set forth below.

PART 512--CONFIDENTIAL BUSINESS INFORMATION

0
1. The authority 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.


0
2. Revise paragraph (c) of 49 CFR 512.21 to read as follows:


Sec.  512.21  How is information submitted pursuant to this part 
treated once a confidentiality determination is made?

* * * * *
    (c) Should the Chief Counsel, after considering a petition for 
reconsideration, decide that information is not entitled to 
confidential treatment, the agency may make the information available 
after twenty (20) working days after the submitter has received notice 
of that decision from the Chief Counsel unless the agency receives 
direction from a court not to release the information.

0
3. Amend Appendix B to Part 512 by revising the first paragraph to read 
as follows:

Appendix B to part 512--General Class Determinations

    The Chief Counsel has determined that the following types of 
information would presumptively be likely to result in substantial 
competitive harm if disclosed to the public:

* * * * *

0
4. Amend Appendix C to Part 512 by revising paragraphs (a)(2) and 
(a)(3), by adding a new paragraph (a)(4), and by adding a new paragraph 
(c) to read as follows:

Appendix C to Part 512--Early Warning Reporting Class Determinations

    (a) * * *
    (1) * * *
    (2) Reports and data relating to field reports, including dealer 
reports and hard copy reports;
    (3) Reports and data relating to consumer complaints; and
    (4) Lists of common green identifiers.
* * * * *
    (c) 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 
reporting of 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: April 16, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-9005 Filed 4-20-04; 8:45 am]
BILLING CODE 4910-59-P