[Federal Register Volume 71, Number 210 (Tuesday, October 31, 2006)]
[Proposed Rules]
[Pages 63738-63749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18285]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 512

Docket No. NHTSA-06-26140; Notice 1
RIN 2127-AJ95


Confidential Business Information

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

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This notice addresses the confidentiality of certain 
information that manufacturers of motor vehicles and motor vehicle 
equipment submit to NHTSA pursuant to the Early Warning Reporting (EWR) 
rule. The agency is proposing to create class determinations, based on 
Exemption 4 of the Freedom of Information Act (FOIA), treating certain 
categories of EWR information as confidential, namely production 
numbers (excluding light vehicles), consumer complaints, paid warranty 
claims, and field reports. In addition, for EWR reports on deaths and 
injuries, NHTSA is proposing to create a class determination based on 
FOIA Exemption 6 that the last six (6) characters of the vehicle 
identification number (VIN) are confidential. Finally, the agency is 
also proposing to clarify its Confidential Business Information rule 
with regard to confidentiality markings in submissions in electronic 
media.

DATES: Comments on the proposal are due January 2, 2007.
    See the SUPPLEMENTARY INFORMATION portion of this document for 
DOT's Privacy Act Statement regarding documents submitted to the 
agency's dockets.

ADDRESSES: You may submit comments by any of the following methods:
     Web site: <http://dms.dot.gov. Follow the 
instructions for submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590.
     Hand Delivery: Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
     Federal eRulemaking Portal: Go to <http://www.regulations.gov. Follow the online instructions for 
submitting comments.

[[Page 63739]]

    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Request for 
Comments heading of the Supplementary Information section of this 
document. Note that all comments received will be posted without change 
to <http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading under Rulemaking Analyses 
and Notices.
    Docket: For access to the docket to read background documents or 
comments received, go to <http://dms.dot.gov at any time or 
to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Kido, Office of Chief Counsel, 
NHTSA, telephone (202) 366-5263, facsimile (202) 366-3820, 400 Seventh 
Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Information Submissions Before and After the EWR Rule Became 
Effective
    A. Pre-TREAD Act Transmissions of Information to NHTSA
    B. The Early Warning Reporting Requirements
    C. Manufacturer Submissions of EWR Information
III. The Proposed Rule on the Confidentiality of EWR Information
    A. Class Determinations Based on FOIA Exemption 4
    1. Basis for Exemptions
    2. Proposed Class Determinations on the Confidentiality of EWR 
Data
    a. Production Numbers
    b. Consumer Complaints
    c. Warranty Claims
    d. Field Reports
    e. Common Green Tire Identifiers
    f. Other Issues To Be Considered
    B. EWR Class Determination Based on FOIA Exemption 6
IV. Exemption 3
V. Other EWR Data
VI. Identifying Confidential Information Located in Electronic Files
VII. Request for Comments
VIII. Privacy Act Statement
IX. Regulatory Analyses and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act
    C. National Environmental Policy Act
    D. Executive Order 13132 (Federalism)
    E. Unfunded Mandate Reform Act
    F. Executive Order 12988 (Civil Justice Reform)
    G. Paperwork Reduction Act
    H. Executive Order 13045
    I. Regulation Identifier Number (RIN)

I. Background

    In 1966, the Congress enacted the National Traffic and Motor 
Vehicle Safety Act (Safety Act), for the purpose of reducing traffic 
accidents and deaths and injuries to persons resulting from traffic 
accidents. 49 U.S.C. 30101.\1\ Since it was amended in 1974,\2\ the 
Safety Act has contained a series of provisions that address motor 
vehicles and motor vehicle equipment that contain a potential or actual 
defect that is related to motor vehicle safety.
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    \1\ Pub. L. No. 89-563, 80 Stat. 718. This preamble will use the 
current citations to the United States Code. In 1994, the Safety 
Act, as amended, was repealed, reenacted, and recodified without 
material change as part of the recodification of Title 49 of the 
United States Code. See Pub. L. No. 103-272, 108 Stat. 745, 1379, 
1385 (1994) (repealing); id. at 745, 941-73 (1994) (reenacting and 
recodifying without substantive changes).
    \2\ Pub. L. No. 93-492, 88 Stat. 1470 (1974).
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    First, the Act requires a manufacturer to notify NHTSA and the 
vehicle or equipment owners if it learns of a defect and decides in 
good faith that the defect is related to motor vehicle safety. 49 
U.S.C. 30118(c). This duty is independent of any action by NHTSA.\3\ 
Ordinarily, a manufacturer's notice is followed by the manufacturer's 
provision of a free remedy to owners of defective vehicles and 
equipment. See 49 U.S.C. 30120. Collectively, the manufacturer's notice 
and remedy are known as a recall.
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    \3\ United States v. General Motors Corp., 574 F. Supp. 1047, 
1049 (D.D.C. 1983).
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    Second, Congress provided NHTSA with considerable investigative and 
enforcement authority. The Safety Act authorizes NHTSA to conduct 
investigations and to require manufacturers to submit reports to enable 
the agency to determine compliance with the statute. 49 U.S.C. 
30166(b), (e). In addition, NHTSA may initiate administrative 
enforcement proceedings to decide whether a motor vehicle or motor 
vehicle equipment contains a safety-related defect or does not comply 
with applicable standards. An investigation may culminate in NHTSA's 
order to the manufacturer to provide notification of a safety-related 
defect or a noncompliance to owners of the vehicle or equipment. 49 
U.S.C. 30118(a)-(b).
    As a practical matter, if a manufacturer has not submitted a notice 
of a safety-related defect to NHTSA and if the agency has not received 
information that provides a sufficient basis for the opening of an 
investigation, it has been unlikely that NHTSA would investigate a 
potential problem. This practical limitation on NHTSA's investigations 
manifested itself in 2000. Under the limited level of reporting then 
required, the agency lacked sufficient information to identify defects 
in Firestone tires mounted on Ford Explorers.\4\ Numerous fatalities 
occurred before NHTSA opened an investigation and Firestone conducted 
recalls.
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    \4\ Background information on this matter is available through 
NHTSA's defects investigation Web site at http://www-odi.nhtsa.dot.gov/cars/problems/defect/defectsearch.cfm. Enter 
``EA00023'' in the ``NHTSA Action Number'' box and click on 
``search''.
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    On November 1, 2000, Congress enacted the Transportation Recall 
Enhancement, Accountability, and Documentation (TREAD) Act. Pub. L. No. 
106-414, 114 Stat. 1800. The TREAD Act added provisions to the Safety 
Act that expanded the scope of the information manufacturers submit to 
NHTSA prior to a manufacturer-initiated recall. In relevant part, the 
TREAD Act required the Secretary of Transportation to publish a rule 
setting out the early warning reporting (EWR) requirements to enhance 
the agency's ability to carry out the Act. 49 U.S.C. 30166(m). In 
general, the TREAD Act authorized the agency to require manufacturers 
to submit information that may assist in the early identification of 
defects related to motor vehicle safety. Id.
    In July 2002, NHTSA promulgated the EWR rule. 67 FR 45822 (July 10, 
2002).\5\ Generally, the EWR rule required certain manufacturers of 
motor vehicles (e.g., automobiles and other light vehicles, trucks, 
buses, motorcycles, and trailers) and motor vehicle equipment (e.g., 
tires and child restraints) to submit data regarding production numbers 
(cumulative total vehicles or equipment manufactured annually), 
incidents involving death or injury based on claims and notices, 
property damage claims, consumer complaints, warranty claims paid, and 
field reports (collectively ``early warning data'') on a quarterly 
basis. See 49 CFR 579.21-26. The information is submitted 
electronically to the agency in a standardized format.\6\
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    \5\ Thereafter, NHTSA published amendments to the EWR rule. As 
used herein, the references to the EWR rule are to the rule as 
amended. The reader should note that the discussion of the EWR rule 
in this notice is a summary. The full text of the rule and 
associated Federal Register notices should be consulted for a full 
description.
    \6\ Subsequently, in response to petitions for reconsideration, 
the rule was amended but these amendments are not germane to the 
rulemaking at hand.
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    The EWR rule did not address the confidentiality of EWR data, but 
noted that this issue would be considered as

[[Page 63740]]

part of the proposed amendments to NHTSA's confidential business 
information rule. See 67 FR at 45866, n.6. The agency addressed the 
confidentiality of EWR data in its July 2003 final rule on Confidential 
Business Information (CBI) rule. 49 CFR part 512, 68 FR 44209 (July 28, 
2003). In addition to establishing revised general requirements 
governing claims of confidentiality and NHTSA rulings on these claims, 
the CBI rule addressed the confidentiality of EWR data. The CBI rule 
established a new Appendix C setting forth class determinations 
treating EWR information on production numbers (excluding light 
vehicles), consumer complaints, warranty claims, and field reports as 
confidential. 49 CFR part 512 App. C. Other EWR data were not 
specifically covered by the CBI rule. The agency based these class 
determinations on the substantial competitive harm and impairment 
standards of Freedom of Information Act (FOIA) Exemption 4. See 5 
U.S.C. 552(b)(4); 49 CFR part 512 App. C.
    In April 2004, NHTSA responded to petitions for reconsideration of 
the July 2003 CBI rule. 69 FR 21409 (April 21, 2004). The agency 
amended the rule by adding two class determinations to Appendix C based 
on FOIA Exemptions 4 and 6. One class determination, based on Exemption 
4, covered common green tire identifiers submitted by tire 
manufacturers under 49 CFR 579.26(d).\7\ The Exemption 6 class 
determination covered the last six (6) characters of vehicle 
identification numbers (VINs) contained in EWR death and injury reports 
submitted to NHTSA. See e.g., 49 CFR 579.21(b)(2).
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    \7\ The term ``common green tires'' refers to ``tires that are 
produced to the same internal specifications but that have, or may 
have, different external characteristics and may be sold under 
different tire line names.'' 49 CFR Sec.  579.4.
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    Public Citizen challenged the legality of Appendix C to 49 CFR part 
512. In a March 31, 2006 decision, the United States District Court for 
the District of Columbia ruled that NHTSA had the authority to 
promulgate the rule making categorical confidentiality determinations 
for classes of EWR data. Public Citizen, Inc. v. Mineta, 427 F. Supp. 
2d 7, 12-14 (D.D.C. 2006). The District Court also concluded, however, 
that NHTSA had not provided adequate notice and opportunity to comment 
on those determinations at the time of the proposed rule, id. at 14-17. 
The Court remanded the matter to NHTSA but did not address the parties' 
other claims. Id. Thereafter, intervenor Rubber Manufacturers 
Association (RMA) filed a motion to amend the judgment to address its 
claim that the disclosure of EWR data was precluded by a specific 
disclosure provision in the TREAD Act, 49 U.S.C. 30166(m)(4)(C).\8\ RMA 
asserted that this provision met the requirements of FOIA Exemption 3, 
which allows the withholding of information prohibited from disclosure 
by another statute. 5 U.S.C. 552(b)(3).
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    \8\ In reference to information provided by manufacturers 
pursuant to the EWR rule, 49 U.S.C. Sec.  30166(m)(4)(C) states: 
``Disclosure. None of the information collected pursuant to the 
final rule promulgated under paragraph (1) [the EWR rule] shall be 
disclosed pursuant to section 30167(b) unless the Secretary 
determines the disclosure of such information will assist in 
carrying out sections 30117(b) and 30118 through 30121.''
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    In a supplemental memorandum opinion filed on July 31, 2006, the 
Court accepted RMA's argument that it should consider the Exemption 3 
claim, but held that the TREAD Act's disclosure provision was not an 
Exemption 3 statute. See Public Citizen, Inc. v. Mineta, 444 F. Supp. 
2d 12 (D.D.C. 2006). On August 24, 2006, RMA filed a motion seeking 
either a judgment under Federal Rule of Civil Procedure 54(b) or 
certification of interlocutory appeal under 28 U.S.C. 1292(b) of the 
District Court's decision regarding Exemption 3. On September 5, 2006, 
the District Court granted RMA's motion. On September 28, 2006, RMA 
filed a Notice of Appeal of the Judgment of July 31, 2006 and 
associated orders.
    In light of the District Court's decisions, NHTSA is proposing a 
rule to address the confidentiality of EWR information through specific 
class determinations based on FOIA Exemptions 4 and 6. Our proposal, 
which sets forth determinations largely similar to our prior 
determinations, addresses the District Court's notice and comment 
concerns.

II. Information Submissions Before and After the EWR Rule Became 
Effective

A. Pre-TREAD Act Transmissions of Information to NHTSA

    Prior to the enactment of the TREAD Act, NHTSA received information 
on potential and actual safety-related defects in motor vehicles 
through several primary mechanisms. First, vehicle owners submitted 
complaints (also known as vehicle owner questionnaires (VOQs)) \9\ to 
NHTSA's Office of Defects Investigation (ODI). These complaints tended 
to identify problems consumers had experienced in their vehicles. 
Second, manufacturers provided copies of technical service bulletins 
and other communications transmitted to more than one manufacturer, 
dealer or owner. See 49 U.S.C. 30166(f); 49 CFR 579.5 (2002-2005), 
573.8 (1995-2001). Third, manufacturers submitted information to the 
agency during investigations of particular vehicles and equipment (such 
as tires) undertaken by ODI. Finally, manufacturers submitted reports 
that certain motor vehicles and equipment contained safety-related 
defects pursuant to 49 CFR part 573 (Defect and Non-Compliance 
Responsibility and Reports) after determining that such a defect 
exists. See 49 U.S.C. 30118(c).
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    \9\ See http://www-odi.nhtsa.dot.gov/ivoq/.
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    On average, during the five years preceding the TREAD Act, ODI 
conducted approximately 83 investigations of potential safety related 
defects per year. On average, 64 of these were first stage 
investigations known as Preliminary Evaluations (PEs). The remaining 
ones were second-stage investigations--Engineering Analyses (EAs).
    During the five (5) years following enactment of the TREAD Act, 
these numbers have remained roughly the same, with the agency 
conducting approximately 84 investigations annually (66 PEs, 28 EAs). 
In most of these investigations, ODI issued information requests to 
manufacturers. A review of the submissions received from manufacturers 
over a recent one-year period revealed that nearly every PE or EA 
submission to the agency involved a request for confidential 
treatment.\10\
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    \10\ Out of 276 requests for confidential treatment we received 
from July 1, 2005 through June 30, 2006, approximately 30% (83) 
involved requests related to a PE (52) or EA (31). These numbers do 
not include requests related to other enforcement-related 
activities, such as compliance investigations or recall-related 
queries.
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B. The Early Warning Reporting Requirements

    The TREAD Act dramatically changed the nature and amount of 
information manufacturers submit to NHTSA. The EWR rule requires 
specified manufacturers to submit a broad array of information on each 
make and model of vehicle and child seat, and substantial tire line 
that they manufacture. The EWR requirements apply mainly to larger 
manufacturers of motor vehicles and tires, and all manufacturers of 
child restraint systems (see 49 CFR part 579). In general, vehicle 
manufacturers who annually produce 500 or more vehicles in a category 
must submit quarterly reports with regard to the following categories 
of vehicles: light vehicles, medium-heavy vehicles and buses, trailers, 
and motorcycles. The reporting information required of these 
manufacturers is summarized below:

     Production. These manufacturers must report the number 
of vehicles, child restraint

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systems, and tires, by make, model, and model (or production) year, 
during the reporting period and the prior nine model years (prior 
four years for child restraint systems and tires).
     Consumer complaints. These manufacturers (other than 
tire manufacturers) must report the numbers of consumer complaints 
they receive that are related to problems with certain specified 
components and systems. Manufacturers of child restraint systems 
must report the combined number of such consumer complaints and 
warranty claims, as discussed below.
     Property damage. These manufacturers (other than child 
restraint system manufacturers) must report the numbers of claims 
for property damage that are related to alleged problems with 
certain specified components and systems, regardless of the amount 
of such claims.
     Warranty claims information. These manufacturers must 
report the number of warranty claims (adjustments for tire 
manufacturers), including extended warranty and good will, they pay 
that are related to problems with certain specified components and 
systems. As noted above, manufacturers of child restraint systems 
must combine these with the number of reportable consumer 
complaints.
     Field reports. These manufacturers (other than tire 
manufacturers) must report the total number of field reports they 
receive from the manufacturer's employees, representatives, and 
dealers, and from fleets, that are related to problems with certain 
specified components and systems. In addition, manufacturers must 
provide copies of certain field reports received from their 
employees, representatives, and fleets, but are not required to 
provide copies of reports received from dealers.
     Deaths. These manufacturers must report certain 
specified information about each incident involving a death that 
occurred in the United States that is identified in a claim (as 
defined) against and received by the manufacturer. They must also 
report information about incidents involving a death in the United 
States that is identified in a notice received by the manufacturer 
alleging or proving that the death was caused by a possible defect 
in the manufacturer's product. Finally, they must report on each 
death occurring in a foreign country that is identified in a claim 
against the manufacturer involving the manufacturer's product, or 
one that is identical or substantially similar to a product that the 
manufacturer has offered for sale in the United States.
     Injuries. These manufacturers must report certain 
specified information about each incident involving an injury that 
is identified in a claim against and received by the manufacturer, 
or that is identified in a notice received by the manufacturer which 
notice alleges or proves that the injury was caused by a possible 
defect in the manufacturer's product.

C. Manufacturer Submissions of EWR Information

    EWR reporting was phased-in, with the first quarterly EWR reports 
submitted on or about December 1, 2003. Field reports (copies of non-
dealer reports) were first submitted on or about July 1, 2004. 68 FR 
35145, 35148 (June 11, 2003) (specifying deadline submissions for EWR 
reports). Since the EWR rule's data submission requirements began in 
December 2003, manufacturers have submitted large amounts of 
information. Over 500 manufacturers have regularly submitted reports 
and collectively submitted thousands of reports, making the volume of 
the incoming data extensive. NHTSA has received reports on more than 8 
million consumer complaints, 138 million warranty claims, and nearly 5 
million field reports (all aggregated) from light vehicle 
manufacturers. Other manufacturers have also provided a large volume of 
aggregated data for the agency to analyze: heavy and medium bus 
manufacturers--over 246,000 consumer complaints, nearly 7 million 
warranty claims, and nearly 245,000 field reports; trailer 
manufacturers--nearly 66,000 consumer complaints, over 1.2 million 
warranty claims, and over 18,000 field reports; motorcycle 
manufacturers--over 35,000 consumer complaints, over 687,000 warranty 
claims, and over 91,000 field reports; tire manufacturers--over 1 
million warranty claims; and child restraint manufacturers--nearly 
43,000 warranty claims and over 7,000 field reports.

III. The Proposed Rule on the Confidentiality of EWR Information

A. Class Determinations Based on FOIA Exemption 4

    In view of the Court's decision in Public Citizen, Inc. v. Mineta, 
NHTSA is initiating a new rulemaking proceeding and proposing to adopt 
class determinations that address the confidential treatment of certain 
EWR information. In general, NHTSA is proposing to adopt the class 
determinations promulgated in 2003 and 2004.\11\ The new class 
determinations we are proposing for EWR data are based on FOIA 
Exemption 4 and would be set out in a new Appendix C to 49 CFR part 
512, which would read as follows:
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    \11\ Minor changes from the 2003 rule, as amended in 2004, are 
reflected in this proposed new Appendix C. One change parallels 
proposed changes to the EWR rule involving the identification of 
product evaluation reports. The proposed changes to the EWR 
regulation were published on September 1, 2006. 71 FR 52040. Another 
change to Part 512 is the relocation of Appendix C's subparagraph 
addressing common green tires.
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Appendix C--Early Warning Reporting Class Determinations

    (a) The Chief Counsel has determined that the following 
information required to be submitted to the agency under 49 CFR 579 
subpart C, will cause substantial competitive harm and will impair 
the government's ability to obtain this information in the future if 
released:
    (1) Reports and data relating to warranty claim information;
    (2) Reports and data relating to field reports, including dealer 
reports, product evaluation reports, and hard copies of field 
reports; and
    (3) Reports and data relating to consumer complaints.
    (b) In addition, the Chief Counsel has determined that the 
following information required to be submitted to the agency under 
49 CFR 579, subpart C, will cause substantial competitive harm if 
released:
    (1) Reports of production numbers for child restraint systems, 
tires, and vehicles other than light vehicles, as defined in 49 CFR 
579.4(c); and
    (2) Lists of common green tire identifiers.
1. Basis for Exemptions
    Consistent with our prior approach, the agency proposes creating 
categories based on Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Under 
Exemption 4, the standard for assessing the confidentiality of required 
submissions of information is whether disclosure is likely either to 
cause substantial competitive harm to the originating entity or to 
impair the government's ability to obtain necessary information in the 
future. National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 
770 (D.C. Cir. 1974). Meeting the competitive harm standard requires 
that there be ``actual competition and a likelihood of substantial 
competitive injury'' from disclosure of the information. CNA v. 
Donovan, 830 F.2d 1132, 1152 (D.C. Cir. 1987). Assessing the effect of 
disclosure under the impairment prong requires a ``rough balancing'' of 
the extent of impairment and the information's importance against the 
public's interest in disclosure. Washington Post v. Dep't of Health and 
Human Services, 690 F.2d 252, 269 (D.C. Cir. 1982).
    We note that motor vehicle and motor vehicle equipment 
manufacturers who are required to submit EWR data operate in a highly 
competitive business environment. See http://stats.bls.gov/oco/cg/cgs012.htm (generally describing the nature of the motor vehicle and 
parts industry). In light of the highly competitive environment in 
which these manufacturers operate, the comprehensive EWR data that they 
submit possess commercial value to the submitting manufacturers, 
competitors, and others such as suppliers who are interested in these 
types of data. These data are standardized and, as discussed above, the 
EWR reports contain identical informational elements for

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

    [A] communication of any kind made by a consumer (or other 
person) to or with a manufacturer addressed to the company, an 
officer thereof or an entity thereof that handles consumer matters, 
a manufacturer Web site that receives consumer complaints, a 
manufacturer electronic mail system that receives such information 
at the corporate level, or that are otherwise received by a unit 
within the manufacturer that receives consumer inquiries or 
complaints, including telephonic complaints, expressing 
dissatisfaction with a product, or relating the unsatisfactory 
performance of a product, or any actual or potential defect in a 
product, or any event that allegedly was caused by any actual or 
potential defect in a product, but

[[Page 63743]]

not including a claim of any kind or a notice involving a fatality 
or injury.\14\
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    \14\ 49 CFR Sec.  579.4(c).

    NHTSA proposes to include EWR consumer complaint data in a class 
determination of confidentiality based on both the competitive harm and 
impairment prongs of National Parks. The commercial value of consumer 
complaint data is well-recognized. Complaint data are a valuable data 
source used by companies to help them identify areas of concern, 
including product performance, to consumers and provide guidance on 
where to allocate their limited resources.\15\ The disclosure of EWR 
complaint numbers would provide competitors with aggregated data on the 
performance of entire product lines and key, individual systems and/or 
components. In view of the competitive value of these data, NHTSA has 
tentatively concluded that the release of EWR consumer complaint data 
would cause substantial harm to the competitive position of the 
manufacturer that collected and reported them.
---------------------------------------------------------------------------

    \15\ See e.g., John Goodman & Steve Newman, Six Steps to 
Integrating Complaint Data into QA Decisions, 36 Quality Progress, 
Issue 2 (Feb. 1, 2003) (stressing the importance of complaint data 
in helping to identify issues with products and the data's 
effectiveness in assisting companies with resource allocation 
decisions to address quality assurance issues) and Edward Bond & 
Ross Fink, Meeting the Customer Satisfaction Challenge, 43 
Industrial Management, Issue 4 (July 1, 2001) (noting the importance 
of measuring customer satisfaction, describing customer complaints 
as a data source to a company that can create a ``big benefit'' from 
small changes, and emphasizing the need for companies to make it 
convenient for consumers to complain). Both articles are available 
in Docket No. NHTSA-2002-12150, Item No. 65.
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    Companies may receive customer input and feedback on product 
performance in a variety of ways and establish differing practices for 
the receipt of customer complaints, which are taken into account by the 
definition of consumer complaint. To obtain these data, companies may, 
for example, increase the staff available at their toll-free telephone 
numbers or create web-based systems through which consumers can make 
complaints instantly by electronic mail. More consumer input channels 
increase the robustness of the available data. In addition to providing 
valuable information to the company, consumer complaints provide 
feedback on product performance that can be valuable to NHTSA in 
identifying problems, including potential defects that may point to the 
presence (or absence) of a safety problem. The agency seeks to ensure 
that it receives as much information as possible to identify possible 
defect trends.
    Under the early warning reporting provisions of the Safety Act, 
however, NHTSA may not require a manufacturer of a motor vehicle or 
motor vehicle equipment to maintain or submit records respecting 
information not in the possession of the manufacturer. 49 U.S.C. 
30166(m)(4)(B). In other words, NHTSA may require manufacturers to 
submit reports based on information that they have collected but may 
not require manufacturers to collect information not otherwise 
collected.
    In view of the fact that the quantity and comprehensiveness of the 
EWR consumer complaint data depend in substantial part on the 
willingness of manufacturers to collect this information through a 
broad and multi-input approach, NHTSA does not want to take steps that 
discourage the collection efforts. NHTSA is concerned that the routine 
disclosure of EWR consumer complaint information would discourage these 
efforts, and ultimately reduce the amount of information manufacturers 
collect. This would impair our ability to obtain this information in 
the future for analysis. It would adversely impact not only the EWR 
program as a whole, but a reduction in complaint data would also 
significantly impact individual investigations in which ODI routinely 
considers and follows up on such data. The disclosure of these data, 
however, would be of limited value to the public. Complaint data 
frequently involves issues that are not safety-related. On balance, the 
importance of the information to the agency's ability to help it 
identify potential safety defects and the associated impairment 
outweigh the smaller interest in its public disclosure. Thus, the 
agency proposes to withhold these data under Exemption 4.
c. Warranty Claims
    Under the EWR rule, manufacturers of more than 500 vehicles per 
year and tire manufacturers must report warranty claims (warranty 
adjustments for tire manufacturers) they paid for specified components 
and systems broken down by component, make, model and model year. 49 
CFR 579.21-26. Repairs made outside of warranties that are covered by 
``good will'' are also reported under warranty claims and warranty 
adjustments.\16\ 49 CFR 579.4. Manufacturers of child restraint systems 
must combine these data with the number of reportable consumer 
complaints. The warranty information is reported on a detailed make/
model basis and categorized with reference to the twenty-two categories 
defined in the EWR regulation.
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    \16\ These data include ``good will'' repairs that are conducted 
and paid for by the manufacturer outside of the warranty. ``Good 
will'' means ``the repair or replacement of a motor vehicle or item 
of motor vehicle equipment, including labor, paid for by the 
manufacturer, at least in part, when the repair or replacement is 
not covered under warranty, or under a safety recall reported to 
NHTSA under part 573 of this chapter.'' 49 CFR Sec.  579.4.
---------------------------------------------------------------------------

    NHTSA proposes to include EWR warranty data in a class 
determination of confidentiality based on both the competitive harm and 
impairment prongs of National Parks. Warranty claims data generally 
reflect a repair paid for by a manufacturer under a warranty. The 
commercial value of warranty complaint data is well known. Warranty 
data are a valuable data source used by companies in identifying 
problem trends early in the life of a vehicle or equipment, before the 
expiration of the warranty. The EWR warranty data provide 
comprehensive, competitively valuable information about the field 
experience of components and systems across all makes and models. Many 
components and systems are updated over time to incorporate new 
technologies or to achieve cost savings. They may be provided by 
different suppliers. The manufacturer's warranty experience with 
various components and systems is a valuable dataset.\17\ The 
disclosure of EWR warranty numbers would provide competitors with 
aggregated data on the performance of entire product lines and key, 
individual systems and/or components. Competitors would use this 
information to assess the in-use performance of parts and systems. It 
would be used in purchasing, pricing, and sourcing decisions, all of 
which would be likely to have competitive impacts. Accordingly, NHTSA 
has tentatively concluded that the release of the EWR warranty data 
would cause substantial harm to the competitive position of the 
manufacturer that collected and reported them.
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    \17\ Published reports illustrate the extent to which the 
industry as a whole relies on and uses sensitive warranty 
information. For example, GM uses its warranty data to help it 
pinpoint problem areas and to help it reduce its warranty costs. 
See, e.g., Gregory L. White, GM Takes Tips from CDC to Debug its 
Fleet of Cars, Wall St. J., April 8, 1999, at B1 (noting GM's 
adaptation of the epidemiological system used by the Centers for 
Disease Control and Prevention to warranty issues) and A Message to 
Dealers Regarding the Ford Recall of Firestone Wilderness AT Tires 
and General Motors Continued Use of Firestone Tires on its Vehicles, 
(May 25, 2001) (stating that GM and Firestone tire engineers ``are 
on site at GM's tire and wheel laboratory two days a week'' to 
``monitor tire warranty data''). Both of these documents are 
available in Docket No. NHTSA-2002-12150, Item No. 65.
---------------------------------------------------------------------------

    Warranties vary in length (e.g., years, miles) and scope (e.g., 3 
years/36,000

[[Page 63744]]

miles vs. 4 years/50,000 miles). Other things being equal, we believe 
that companies with more generous warranty and good will programs will 
have a higher number of warranty claims than those with more limited 
policies. The more generous the warranty policies (such as longer 
warranty coverage), the more warranty data that will be subject to 
disclosure to NHTSA.
    Because of the data's commercial value and the manner in which they 
can be used, the disclosure of this information would reduce the 
willingness of manufacturers to maintain extensive warranty programs 
including extended warranties and good will, which could ultimately 
reduce the availability of robust warranty information in the future. 
ODI would have substantially less information to analyze in 
investigating potential defects.\18\ Also consumers would receive fewer 
free repairs under warranty programs, which in addition to being 
economically disadvantageous, would in some instances adversely affect 
motor vehicle safety because vehicles would not be repaired. However, 
the EWR information would not be useful to the public in comparing 
vehicles or equipment because of the differences in warranty terms and 
corporate warranty practices--which would could cause the public to 
derive incorrect conclusions from the information. The rough balancing 
under the impairment prong weighs in favor of withholding this 
information, as the public interest favoring disclosure is small and 
the adverse effects accompanying disclosure are substantial. Thus, the 
agency proposes to withhold EWR warranty information under Exemption 4.
---------------------------------------------------------------------------

    \18\ Manufacturers may choose to make available to their 
customers warranties of longer duration and broader mileage (e.g., a 
company may offer a 5-year/50,000 mile warranty or a 3-year/36,000 
mile warranty), making more warranty claims information subject to 
disclosure to the agency. DaimlerChrysler, for example, lengthened 
its engine warranty period to gain in the competitive market. See, 
e.g., Jeff Green, DC Emphasizes Warranty, Bloomberg, Sept. 6, 2002, 
available at http://www.theautochannel.com. Not only do warranties 
differ by manufacturer, they also differ based on the targeted 
market (e.g. luxury v. non-luxury) and on system components and 2003 
Manufacturers' Warranties, available at www.enterprise.com. Both 
items are docketed in Docket No. NHTSA-2002-12150, Item No. 65.
---------------------------------------------------------------------------

d. Field Reports
    Field reports are communications from a manufacturer's 
representative or dealer about a malfunction or performance problem. 49 
CFR 579.4. The EWR rule requires manufacturers of specified vehicles 
and child restraints to provide information on field reports and copies 
of non-dealer field reports. In general, as in other categories of EWR 
data, the field report data are provided by make, model and model year 
and, further, by numerous specified systems and components. 49 CFR 
579.21-25.
    Field reports reflect the in-use experience of a manufacturer's 
product, collected by the company at its expense and with the intent of 
identifying problems with its products. The nature, quality and 
quantity of field reports vary, with reports from some companies 
reflecting their pursuit of detailed feedback, and those from others 
yielding less information. For others, a field report is more akin to a 
technical investigation into a problem detected through warranty, 
consumer complaint or other information available to the company.
    NHTSA proposes to include EWR field report information in a class 
determination of confidentiality based on both the competitive harm and 
impairment prongs of National Parks. Field report information would 
identify systems and components that have experienced malfunction or 
performance issues, in quantitative terms in all products. More 
particularly, the field reports would reveal specific problems 
associated with particular components and systems. Overall, the 
information would reveal aspects of a vehicle's performance (whether 
potentially safety-related or not) that a manufacturer deems important 
in its commercial efforts. If EWR field report information were 
disclosed, the reporting manufacturer's competitors would have access 
to comprehensive data involving malfunction or performance issues 
covering all products. Such information, if publicly released, would be 
of substantial value to competitors, who could avert similar issues or 
improve their products without the need to invest in market research, 
engineering development, or actual market experience. NHTSA has 
tentatively concluded that their release would cause substantial harm 
to the competitive position of the manufacturer that collected and 
reported them.
    Manufacturers' decisions to obtain field reports are discretionary 
and practices vary among manufacturers. The disclosure of field report 
data would discourage manufacturers from initiating field reports. This 
would lead to fewer and less reliable field reports available to the 
agency in the future to identify potential safety defects promptly. 
Field reports are particularly valuable in identifying areas of 
potential concern to manufacturers. Some of these reports have also 
been indicative of potential defect trends. Since the agency can 
require only that manufacturers submit information about, and copies 
of, those field reports that companies choose to prepare and/or obtain, 
there is a substantial risk that the agency's ability to obtain this 
information in the future would be impaired, which would adversely 
affect the program's effectiveness. See 49 U.S.C. 30166(m)(4)(B). By 
contrast, the value of these data would be limited to the public. The 
technical data and reports of the number of field reports would not 
readily identify safety-related issues. As such, the agency does not 
believe that these data and numbers would contain information that 
would be informative to the public with regard to vehicle safety. In 
balancing the interests in disclosure, the agency has tentatively 
concluded that the impacts to the agency's ability to identify safety 
defects from these technically-rich reports--as well as the competitive 
impacts to submitters--outweigh the interest the public has in 
disclosure of this information. Consequently, the agency proposes to 
withhold this information under Exemption 4.
e. Common Green Tire Identifiers
    The EWR rule requires certain tire manufacturers to provide a list 
of common green tire data. 49 CFR Sec.  579.26(d). ``Common greens'' 
are tires ``that are produced to the same internal specifications but 
that have, or may have, different external characteristics and may be 
sold under different tire line names.'' 49 CFR 579.4(c). NHTSA proposes 
to include EWR common green tire data in a class determination of 
confidentiality based on the competitive harm prong of National Parks. 
The common green tire information reveals the identities of tires that 
share the same internal specifications and relationships between 
manufacturers and private brand name owners. Tire manufacturers 
previously indicated that these data are particularly valuable because 
they permit competitors to assess individual manufacturer capabilities 
and marketing strategies. 69 FR at 21417.
f. Other Issues To Be Considered
    In addition to comments on the above, we seek comments on the 
proposed approach. This includes whether the proposed categories for 
certain EWR data (i.e., those data covering non-light vehicle 
production, consumer complaints, warranty claims, field reports, and 
common green tires) should be held confidential by class determinations 
based on Exemption 4. For example, we invite commenters to

[[Page 63745]]

provide information relating to whether the release of this information 
would provide competitors with valuable information relating to the 
business of the reporting entity, such as marketing, performance 
problems and/or costs, to the extent that the disclosure would cause or 
be likely to cause the data submitter substantial competitive harm. We 
are also interested in whether the disclosure of the information 
covered by our proposed classes would significantly discourage 
manufacturers from continuing to obtain and manage this information as 
they do now.
    Commenters may also address different approaches. We invite 
comments that address the practical concerns of such potential 
approaches. For example, if NHTSA were to adopt presumptive class 
determinations for each of the EWR data categories, what are the 
relative merits of each proposed class within the context of the large 
volume of information generated by EWR requirements, and the manner in 
which the agency can address the confidentiality of these materials in 
an efficient and consistent manner.\19\
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    \19\ ``Binding'' determinations would alleviate the need for 
submitters to provide a formal written request for confidentiality 
and supporting justification, whereas ``presumptive'' determinations 
would require submitters to provide a written request and supporting 
justification pursuant to 49 CFR Part 512.
---------------------------------------------------------------------------

    Commenters should also, where appropriate, indicate and demonstrate 
how the restrictions imposed by Congress in 49 U.S.C. 30166(m)(4)(B) 
would affect the agency's ability to continue collecting EWR data if 
they are subject to routine disclosure. Supporting facts in favor or 
against each class should be included as appropriate.

B. EWR Class Determination Based on FOIA Exemption 6

    NHTSA receives VIN information under the EWR rule in reports on 
incidents involving deaths and injuries. See e.g. 49 CFR 579.21(b)(2). 
NHTSA is proposing to create a class determination that would apply to 
the last six (6) characters of the unique seventeen (17) character 
vehicle identification number (VIN) contained in EWR death and injury 
reports. This proposal is grounded on Exemption 6 of the FOIA, which 
protects information that would result in a clearly unwarranted 
invasion of privacy if disclosed. See 5 U.S.C. 552(b)(6). See also 
Center for Auto Safety v. NHTSA, 809 F. Supp. 148 (D.D.C. 1993).
    Factually, this proposed exemption is based on the risk that the 
disclosure of a full VIN could enable an individual to discern personal 
information involving a vehicle owner that could result in an 
unwarranted invasion of his or her privacy. With respect to EWR 
submissions, NHTSA had previously issued a determination that the last 
six (6) characters in the seventeen-character VIN should be protected, 
as a class, from public disclosure under FOIA Exemption 6, 5 U.S.C. 
552(b)(6). 69 FR at 21416. When coupled with publicly-available data 
bases, the disclosure of a complete VIN can lead to the discovery of 
personal information (e.g., name and address) about the owner of a 
vehicle associated with a death or injury.\20\ The first 11 characters 
of the VIN reveal the make, model, model year, and engine of the 
vehicle, but the last six identify the specific vehicle. We are 
concerned that release of VINs where there has been a death or an 
injury reported under the EWR program would result in communications 
and inquiries from third parties that would invade personal privacy.
---------------------------------------------------------------------------

    \20\ NHTSA has previously documented that full VINs can be used 
to ascertain personal information on individual vehicle owners. See 
Docket No. NHTSA-2002-12150, Item No. 64 (listing various publicly 
available Web sites by which VIN information can be used to reveal 
personal information).
---------------------------------------------------------------------------

    Since the public can still determine a vehicle's make and model 
using the first 11 characters of the VIN, which would be released, 
members of the public with an interest in motor vehicle safety can 
still ascertain whether a particular type of vehicle may be involved in 
a potential vehicle safety issue. As discussed above, however, the 
revelation of the complete VIN is accompanied by the risk of an 
invasion of privacy. On balance, the agency tentatively believes that 
that interest in protecting the risk of invading individuals' privacy 
outweighs the public's interest in this information and the agency has 
tentatively concluded that this information merits withholding under 
FOIA Exemption 6.\21\
---------------------------------------------------------------------------

    \21\ See generally Horowitz v. Peace Corps, 428 F.3d 271, 278-79 
(D.C. Cir. 2005) (discussing balancing required under Exemption 6 
and indicating that ``seemingly innocuous information'' can be 
subject to the Exemption's protection).
---------------------------------------------------------------------------

    This new class determination would be set out in a new Appendix D, 
which would read as follows:

Appendix D--Vehicle Identification Number Information

    The Chief Counsel has determined that the disclosure of the last 
six (6) characters, when disclosed along with the first eleven (11) 
characters, of vehicle identification numbers reported in 
information on incidents involving death or injury pursuant to the 
early warning information requirements of 49 CFR Part 579 will 
constitute a clearly unwarranted invasion of personal privacy within 
the meaning of 5 U.S.C. 552(b)(6).

    This proposal would apply as a rule to only those VINs that are 
provided in EWR submissions and would not apply as a rule to the 
agency's treatment of VINs in other instances.
    We seek comment on the appropriateness of our proposal, as well as 
variations on this proposal related to the confidentiality of all or 
parts of VINs.

IV. Exemption 3

    In its comments in the course of the earlier EWR CBI rulemaking, 
and the memoranda it filed with the District Court in the Public 
Citizen case, the RMA asserted that Exemption 3 of the FOIA covered all 
EWR submissions, including requests for the confidentiality of EWR 
information not within the scope of Appendix C to Part 512 as 
promulgated in 2003 and amended in 2004 and individual requests for 
confidentiality. The District Court rejected the contention that 
Exemption 3 applies to the EWR data, concluding that the disclosure 
provision affecting EWR data, 49 U.S.C. 30166(m)(4)(C),\22\ did not 
qualify as an Exemption 3 statute because the provision does not 
prescribe a formula to enable the agency to determine precisely whether 
the disclosure of the data would be helpful in carrying out the recall 
notification and remedy provisions of the Safety Act. It also noted 
that the provision did not refer to particular matters that must be 
withheld. See Public Citizen, 444 F. Supp. 2d at 12.
---------------------------------------------------------------------------

    \22\ The provision, 49 U.S.C. Sec.  30166(m)(4)(C), provides as 
follows:
    Disclosure. None of the information collected pursuant to the 
final rule promulgated under paragraph (1) [i.e. early warning 
reporting rule] shall be disclosed pursuant to section 30167(b) 
unless the Secretary determines the disclosure of such information 
will assist in carrying out sections 30117(b) and 30118 through 
30121.
---------------------------------------------------------------------------

    RMA filed a notice of appeal of the District Court's Judgment. The 
contention that NHTSA is precluded by statute from releasing the early 
warning data is within the scope of this notice. Should the Court of 
Appeals reverse the District Court on this issue and decide that 
Exemption 3 does apply to EWR data, the agency may proceed to issue a 
final rule exempting EWR data from disclosure in a manner consistent 
with the Court of Appeal's decision or terminate the EWR Appendix C 
portion of this rulemaking as unnecessary.

V. Other EWR Data

    We are not proposing to include property damage claims and notices 
of

[[Page 63746]]

death, personal injury or property damage as part of our class 
determinations based on Exemption 4. These items involve a collection 
of information, many pieces of which are publicly available. In the 
particular circumstances of these data, we do not believe that the 
disclosure of this collected information would likely provide 
information that would be used competitively and result in substantial 
competitive harm. These kinds of claims tend to be more historical, 
rather than predictive, when compared to the other types of information 
required by the EWR regulation, with any apparent trends arising over 
longer periods of time. We consider it unlikely that information about 
claims of death, personal injury or property damage will be valuable to 
competitors such as in cross-company comparisons. We note also that 
manufacturers receive claims based on incidents occurring in the field, 
not as the result of proactive efforts to obtain data or customer 
feedback. They are required under 49 CFR Part 576 to retain this 
information and do not have the option to refuse to amass it.
    Therefore, other than within the context of the Exemption 3 
discussion above and except to the extent that the EWR submissions 
contain personal information covered by Exemption 6, these data 
categories lie outside the scope of this rulemaking.

VI. Identifying Confidential Information Located in Electronic Files

    We are also proposing to clarify NHTSA's Confidential Business 
Information rule, 49 CFR 512.6, regarding data claimed as confidential 
that are submitted in electronic form. The current regulation states 
requirements for paper submissions. See 49 CFR 512.6(a), (b)(1) and 
(2); see also 49 CFR Sec.  512.8. It then states that if submitted in 
electronic format, a comparable method to of identifying the 
information claimed to be confidential may be used. If submitted on CD-
ROM or other format, the item containing the information shall be 
labeled as containing confidential information. 49 CFR 512.6(c).
    Some CD-ROMs that are submitted to us are not labeled or indelibly 
marked as confidential on the disk itself. We propose to require that 
the medium (e.g., the disk itself and not the plastic enclosure for the 
disk) be permanently labeled with the submitter's name, the subject of 
the information and the word ``Confidential.'' This is already the 
routine practice with some manufacturers. In addition, during our 
reviews of claims for confidential treatment, we often find that CD-
ROMs do not properly designate the information that the submitters 
claim to be confidential. More particularly, individual files submitted 
electronically (e.g., pdf format) on CD-ROMs often contain documents in 
which each page claimed to be confidential is not labeled as 
confidential. Also, while a page may contain some information that is 
not confidential (e.g., identical information is publicly available) 
and some information that is within the claim for confidentiality under 
section 512.8, the submitter does not enclose each item of information 
that is claimed to be confidential within brackets. Today's proposal 
would require that the CD-ROM be marked permanently as confidential and 
that each page that contains confidential material be so marked. Also, 
the proposal would require that where only part of the information is 
within the scope of the claim, that part of the information be 
separately enclosed within brackets. Our proposed clarification seeks 
to minimize inadvertent disclosure of materials that are subject to a 
claim of confidentiality and eliminate any ambiguity on the scope of 
the claim in our review of these types of submitted documents.
    During our reviews of claims for confidential treatment, we also 
find that files within CD-ROMs do not contain page numbers. Electronic 
submissions sometimes contain large numbers of files and folders. Not 
infrequently, these files contain numerous pages. When we deny a 
request for confidentiality for a particular page, we need to identify 
it with particularity. Individual pages within individual electronic 
files that lack page numbers ordinarily cannot be readily identified. 
In these instances, there are substantial implementation problems in 
identifying what page(s) are within the scope of the agency's grant of 
a request for confidentiality and what page(s) that are within the 
scope of the agency's denial. To eliminate these problems, we are 
proposing to add a provision requiring the inclusion of a sequential 
numeric or alpha-numeric system that would identify each page contained 
in an electronic submission. This may be added to the pages before they 
are scanned or in the course of the preparation of the CD-ROM. We note 
that the courts require page numbers in appendices. See e.g., Federal 
Rule of Appellate Procedure 30.
    The proposal also provides that electronic media may be submitted 
only in commonly available and used formats. This would include formats 
such as pdf, Word documents and Excel spreadsheets. From time-to-time, 
manufacturers submit information in proprietary or uncommon data bases. 
We have been unable to open and review these items and accordingly have 
denied the associated requests for confidentiality.
    Finally, we would clarify that requests for confidential treatment 
for information submitted to the agency must provide the information 
claimed as confidential in a physical medium such as a CD-ROM. There 
have been occasions where manufacturers have attempted to submit 
information claimed as confidential via e-mail. Not only was this not 
allowed under the existing regulations, but tracking requests for 
confidential treatment submitted in this manner is very difficult and 
far more prone to error than a physical submission. This affects the 
agency's ability to provide timely responses to these requests and the 
Chief Counsel's office's ability to transmit the information to the 
relevant office within NHTSA. In addition, the Department of 
Transportation limits the overall amount of e-mail information that an 
individual may maintain, and this presents problems. It also creates 
storage issues. To ensure our ability to properly track and handle this 
information, our proposal would require that the information be placed 
on appropriate physical media, such as CDs, when requesting 
confidential treatment.
    These changes would be included in a new Sec.  512.6(c) which would 
replace Sec.  512.6(b)(3). The proposed Sec.  512.6(c) would read as 
follows:

    (c) Submissions in electronic format
    (1) Persons submitting information under this Part may submit 
the information in electronic format. Except for early warning 
reporting data submitted to the agency under 49 CFR part 579, the 
information shall be submitted in a physical medium such as a CD-
ROM. The exterior of the medium (e.g., the disk itself) shall be 
permanently labeled with the submitter's name, the subject of the 
information and the word ``CONFIDENTIAL''.
    (2) Pages and materials claimed to be confidential must be 
designated as provided in paragraphs (b)(1) and (b)(2) of this 
section. Files and materials that cannot be marked internally, such 
as video clips or executable files, shall be renamed prior to 
submission so the characters ``Conf'' or the word ``Confidential'' 
appear in the file name.
    (3) Each page within an electronic file that is submitted for 
confidential treatment must be individually numbered in the order 
presented with a sequential numeric or alpha-numeric system that 
separately identifies each page contained in that submission.
    (4) Electronic media may be submitted only in commonly available 
and used formats.

[[Page 63747]]

VII. Request for Comments

How Do I Prepare and Submit Comments?

    Your comments must be written and in English. To ensure that your 
comments are correctly filed in the Docket, please include the docket 
number of this document in your comments.
    Your comments must not be more than 15 pages long (49 CFR 553.21). 
We established this limit to encourage you to write your primary 
comments in a concise fashion. However, you may attach necessary 
additional documents to your comments. There is no limit on the length 
of the attachments.
    Please submit two copies of your comments, including the 
attachments, to Docket Management at the beginning of this document, 
under ADDRESSES. You may also submit your comments electronically to 
the docket following the steps outlined under ADDRESSES.

How Can I Be Sure That My Comments Were Received?

    If you wish Docket Management to notify you upon its receipt of 
your comments, enclose a self-addressed, stamped postcard in the 
envelope containing your comments. Upon receiving your comments, Docket 
Management will return the postcard by mail.

How Do I Submit Confidential Business Information?

    If you wish to submit any information under a claim of 
confidentiality, you should submit the following to the Chief Counsel 
(NCC-110) at the address given at the beginning of this document under 
the heading FOR FURTHER INFORMATION CONTACT: (1) A complete copy of the 
submission; (2) a redacted copy of the submission with the confidential 
information removed; and (3) either a second complete copy or those 
portions of the submission containing the material for which 
confidential treatment is claimed and any additional information that 
you deem important to the Chief Counsel's consideration of your 
confidentiality claim. A request for confidential treatment that 
complies with 49 CFR part 512 must accompany the complete submission 
provided to the Chief Counsel. For further information, submitters who 
plan to request confidential treatment for any portion of their 
submissions are advised to review 49 CFR part 512, particularly those 
sections relating to document submission requirements. Failure to 
adhere to the requirements of part 512 may result in the release of 
confidential information to the public docket. In addition, you should 
submit two copies from which you have deleted the claimed confidential 
business information, to Docket Management at the address given at the 
beginning of this document under ADDRESSES.

Will the Agency Consider Late Comments?

    We will consider all comments that Docket Management receives 
before the close of business on the comment closing date indicated at 
the beginning of this notice under DATES. In accordance with our 
policies, to the extent possible, we will also consider comments that 
Docket Management receives after the specified comment closing date. If 
Docket Management receives a comment too late for us to consider in 
developing the proposed rule, we will consider that comment as an 
informal suggestion for future rulemaking action.

How Can I Read the Comments Submitted by Other People?

    You may read the comments received by Docket Management at the 
address and times given near the beginning of this document under 
ADDRESSES.
    You may also see the comments on the Internet. To read the comments 
on the Internet, take the following steps:

    (1) Go to the Docket Management System (DMS) Web page of the 
Department of Transportation (http://dms.dot.gov/).
    (2) On that page, click on ``search.''
    (3) On the next page (http://dms.dot.gov/search/), type in the 
four-digit docket number shown at the heading of this document. 
Example: if the docket number were ``NHTSA-2001-1234,'' you would 
type ``1234.''
    (4) After typing the docket number, click on ``search.''
    (5) The next page contains docket summary information for the 
docket you selected. Click on the comments you wish to see.

    You may download the comments. The comments are imaged documents, 
in either TIFF or PDF format. Please note that even after the comment 
closing date, we will continue to file relevant information in the 
Docket as it becomes available. Further, some people may submit late 
comments. Accordingly, we recommend that you periodically search the 
Docket for new material.

VIII. Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

IX. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735 (Oct. 4, 1993)), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to review by 
the Office of Management and Budget (OMB) and to the requirements of 
the Executive Order. The Order defines a ``significant regulatory 
action'' as one that is likely to result in a rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures (44 FR 11034 (Feb. 26, 1979)). This rulemaking 
action is not significant under E.O. 12866, ``Regulatory Planning and 
Review'' or the Department's regulatory policies and procedures. There 
are no new significant burdens on information submitters or related 
costs that would require the development of a full cost/benefit 
evaluation. As indicated in the preamble, this document proposes 
primarily to remedy a technical deficiency identified by a Federal 
court and does not raise any new legal or policy issues. This proposed 
rule does not present novel policy issues. Instead, it involves issues 
that have been subject to past notice and comment and have also been 
previously addressed in prior court proceedings.

B. Regulatory Flexibility Act

    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) This proposed rule 
would not have a significant economic impact on a substantial number of 
small entities. This proposed rule would impose no

[[Page 63748]]

additional reporting obligations on small entities beyond those 
otherwise required by the Safety Act and the early warning reporting 
regulation. This proposed rule addresses the agency's treatment of 
early warning reporting data and would clarify procedures for all 
submitters, including small entities, with regard to confidentiality. 
The rule would protect certain categories of early warning reporting 
information from disclosure.
    In addition, small entities, which generally submit items in hard 
copy format, are expected to and may continue to do so. Those wishing 
to submit information in electronic format would be able to do so using 
the procedures that we are clarifying in this proposal. Therefore, a 
regulatory flexibility analysis is not required for this proposed 
action.

C. National Environmental Policy Act

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

D. Executive Order 13132 (Federalism)

    NHTSA has examined today's proposed rule pursuant to Executive 
Order 13132 (64 FR 43255, August 10, 1999). This action would not have 
``federalism implications'' because it would not have ``substantial 
direct effects on States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government,'' as specified 
in section 1 of the Executive Order.

E. Unfunded Mandate Reform Act

    The Unfunded Mandate Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of more than $100 million annually 
(adjusted for inflation with base year of 1995). This proposal would 
not result in the expenditure by State, local or tribal governments, in 
the aggregate, or by the private sector, of more than $100 million 
annually.

F. Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    NHTSA notes that there is no requirement that individuals submit a 
petition for reconsideration or pursue other administrative proceedings 
before they may file suit in court.

G. Paperwork Reduction Act

    The existing requirements of Part 512 are considered to be 
information collection requirements as that term is defined by the 
Office of Budget and Management (OMB) in 5 CFR part 1320. Accordingly, 
the existing part 512 regulation was submitted to and approved by OMB 
pursuant to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). At 
the time that we submitted the prior requirements of part 512, these 
requirements were approved through January 31, 2008. This proposal does 
not revise the existing currently approved information collection under 
part 512. Instead, the proposal contains the same requirements as 
before and only clarifies procedures as to electronically-submitted 
items to the agency for which confidentiality is sought. It does not 
require electronic submissions.

H. Executive Order 13045

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under E.O. 12866, and (2) concerns an environmental, health or 
safety risk that NHTSA has reason to believe may have a 
disproportionate effect on children. This proposed action does not meet 
either of these criteria.

I. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 512

    Administrative procedure and practice, Confidential business 
information, Freedom of information, Motor vehicle safety, Reporting 
and record keeping requirements.

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

PART 512--CONFIDENTIAL BUSINESS INFORMATION

    1. The authority citation for part 512 continues to read as 
follows:

    Authority: 49 U.S.C. 322; 5 U.S.C. 552; 49 U.S.C. 30166, 49 
U.S.C. 30167; 49 U.S.C. 32307; 49 U.S.C. 32505; 49 U.S.C. 32708; 49 
U.S.C. 32910; 49 U.S.C. 33116; delegation of authority at 49 CFR 
1.50.

    2. Section 512.6 is amended by removing paragraph (b)(3) and adding 
a new paragraph (c) to read as follows:


Sec.  512.6  How should I prepare documents when submitting a claim for 
confidentiality?

* * * * *
    (c) Submissions in electronic format. (1) Persons submitting 
information under this Part may submit the information in electronic 
format. Except for early warning reporting data submitted to the agency 
under 49 CFR part 579, the information shall be submitted in a physical 
medium such as a CD-ROM. The exterior of the medium (e.g., the disk 
itself) shall be permanently labeled with the submitter's name, the 
subject of the information and the word ``Confidential''.
    (2) Pages and materials claimed to be confidential must be 
designated as provided in paragraphs (b)(1) and (b)(2) of this section. 
Files and materials that cannot be marked internally, such as video 
clips or executable files, shall be renamed prior to submission so the 
characters ``Conf'' or the word ``Confidential'' appear in the file 
name.
    (3) Each page within an electronic file that is submitted for 
confidential treatment must be individually numbered in the order 
presented with a sequential numeric or alpha-numeric system that 
separately identifies each page contained in that submission.
    (4) Electronic media may be submitted only in commonly available 
and used formats.
* * * * *
    3. Appendix C to part 512 is revised to read as follows:

[[Page 63749]]

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

    (a) The Chief Counsel has determined that the following 
information required to be submitted to the agency under 49 CFR part 
579, subpart C, will cause substantial competitive harm and will 
impair the government's ability to obtain this information in the 
future if released:
    (1) Reports and data relating to warranty claim information;
    (2) Reports and data relating to field reports, including dealer 
reports, product evaluation reports, and hard copies of field 
reports; and
    (3) Reports and data relating to consumer complaints.
    (b) In addition, the Chief Counsel has determined that the 
following information required to be submitted to the agency under 
49 CFR 579, subpart C, will cause substantial competitive harm if 
released:
    (1) Reports of production numbers for child restraint systems, 
tires, and vehicles other than light vehicles, as defined in 49 CFR 
Sec.  579.4(c); and
    (2) Lists of common green tire identifiers.

    4. Appendix D to part 512 is redesignated as Appendix E to part 512 
and a new Appendix D to part 512 is added to read as follows:

Appendix D to Part 512--Vehicle Identification Number Information

    The Chief Counsel has determined that the disclosure of the last 
six (6) characters, when disclosed along with the first eleven (11) 
characters, of vehicle identification numbers reported in 
information on incidents involving death or injury pursuant to the 
early warning information requirements of 49 CFR part 579 will 
constitute a clearly unwarranted invasion of personal privacy within 
the meaning of 5 U.S.C. 552(b)(6).

    Issued on: October 26, 2006.
Anthony M. Cooke,
Chief Counsel.
[FR Doc. E6-18285 Filed 10-30-06; 8:45 am]
BILLING CODE 4910-59-P