[Federal Register Volume 73, Number 145 (Monday, July 28, 2008)]
[Notices]
[Pages 43820-43821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17237]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration


Notice of Date for Submission of Requests for Confidential 
Treatment of Certain Early Warning Reporting Data

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

ACTION: Notice.

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SUMMARY: This notice establishes a submission date for those 
manufacturers that choose to submit requests for confidential treatment 
of Early Warning Reporting data on incidents involving a death or an 
injury, property damage claims or light vehicle production to send the 
requests to NHTSA's Chief Counsel.

DATES: Requests for confidential treatment of previously submitted 
Early Warning Reporting data on incidents involving a death or an 
injury, on property damage claims and on light vehicle production must 
be submitted to NHTSA's Chief Counsel by August 27, 2008.

FOR FURTHER INFORMATION CONTACT: Mr. Andrew J. DiMarsico, NHTSA Office 
of the Chief Counsel, W41-227, 1200 New Jersey Avenue, SE., Washington, 
DC 20590 (Telephone: 202-366-5263) (Fax: 202-366-3820).

SUPPLEMENTARY INFORMATION: The Transportation Recall Enhancement, 
Accountability, and Documentation (TREAD) Act, which was enacted in 
2000, required NHTSA to prescribe rules establishing early warning 
reporting (EWR) requirements. 49 U.S.C. 30166(m). On July 10, 2002, 
NHTSA published regulations implementing the early warning reporting 
provisions. 49 CFR part 579 Subpart C, 67 FR 45822. In general, the EWR 
regulations require manufacturers of motor vehicles (producing 500 or 
more vehicles annually), all manufacturers of child restraint systems 
and manufacturers of tires above a specified volume to report, on a 
quarterly basis, information on production, incidents involving 
fatalities and injuries based on claims and notices, claims for 
property damage, consumer complaints, warranty claims and field 
reports, and to submit copies of certain field reports. See 49 CFR 
579.21-26. Manufacturers of motor vehicles that produce less than 500 
vehicles annually, and all other equipment manufacturers, do not 
provide quarterly reports, but are required to report information on 
incidents involving death(s) based on claims or notices. See 49 CFR 
579.27. Additionally, manufacturers were required to file initial 
reports containing historical data. See 49 CFR 579.28(c). The EWR rule 
did not address whether the information submitted by manufacturers 
would be released to the public.
    On July 28, 2003, NHTSA published an appendix to its Confidential 
Business Information (CBI) rule that addressed the confidentiality of 
EWR data. See 49 CFR part 512 App. C, 68 FR 44209. The rule established 
class determinations that EWR information on production numbers (except 
for light vehicles), consumer complaints, warranty claims and field 
reports (including copies of reports) were confidential. NHTSA 
subsequently amended the rule to add a class determination that common 
green tire data are confidential. 69 FR 21409 (April 21, 2004). During 
the rulemaking, NHTSA declined to adopt a request by commenters that 
EWR data on deaths and injuries and on property damage claims 
(collectively, ``EWR claims data'') be accorded confidentiality. 
Instead, manufacturers could submit individualized requests for 
confidential treatment of their EWR claims data. If a manufacturer did 
not submit a request for confidential treatment of its EWR claims data, 
the agency would be free to disclose it.
    Litigation over the provisions in NHTSA's rule on the 
confidentiality of EWR data was instituted in March of 2004. Public 
Citizen challenged the class determinations and sought to have them set 
aside. The Rubber Manufacturers Association (RMA), a trade association 
that includes tire manufacturers, intervened contending that all EWR 
information including EWR claims data is exempt from disclosure. This 
was based on the legal theory that the TREAD Act precluded the 
disclosure of the data and thus under Exemption 3 of the Freedom of 
Information Act, 5 U.S.C. 552(b)(3),\1\ NHTSA could not release EWR 
data. In addition, some RMA members submitted requests for 
confidentiality of EWR claims data, which NHTSA denied. RMA's complaint 
as an intervenor challenged those denials as well as the rule.
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    \1\ Exemption 3 incorporates the various nondisclosure 
provisions contained in other Federal statutes. It provides for the 
withholding of information specifically exempted from disclosure by 
statute, provided that such statute ``(A) requires that the matters 
be withheld from the public in such a manner as to leave no 
discretion on the issue, or (B) establishes particular criteria for 
withholding or refers to particular types of matters to be 
withheld.'' 5 U.S.C. 552(b)(3).
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    In light of the RMA claim in the lawsuit, NHTSA stayed the 
processing of requests for confidential treatment of EWR information 
until the matters in litigation were resolved. The agency further 
advised manufacturers that until further notice they should not request 
confidential treatment of EWR information.
    In its resolution of the litigation, the District Court issued two 
opinions. In the first, the Court found that NHTSA had the authority to 
make the class determinations of confidentiality but had failed to 
follow proper notice and comment procedures when it did so. It remanded 
the matter back to NHTSA. See Public Citizen, Inc. v. Mineta, 427 
F.Supp.2d 7 (D.D.C. 2006). In a subsequent decision, the Court rejected 
RMA's contention that the TREAD Act precluded NHTSA from releasing EWR 
data. See Public Citizen, Inc. v. Mineta, 444 F.Supp.2d 12 (D.D.C. 
2006). RMA appealed. On July 22, 2008, the U.S. Court of Appeals for 
the District of Columbia Circuit affirmed the judgment of the District 
Court on RMA's claim that the TREAD Act precluded the release of all 
EWR data. Public Citizen, Inc., v. Rubber Manufacturers Association, 
No. 06-5304, -- F.3d -- (DC Cir. 2008).
    While RMA's appeal was pending, in response to the District Court's 
remand of the 2003 rule, NHTSA published a rule on the confidentiality 
of EWR data. See 72 FR 59434 (Oct. 19, 2007). The 2007 rule contained 
class determinations that EWR information on production numbers (except 
for light vehicles), consumer complaints, warranty claims, field 
reports (including copies of field reports) and common green tire data 
are confidential. Significantly, under the 2007 rule, EWR claims data 
is not covered by any class determinations. Accordingly, manufacturers 
seeking confidential treatment for EWR claims data may do so by 
submitting individual requests for

[[Page 43821]]

confidential treatment pursuant to 49 CFR part 512.
    This notice addresses the timing of submission of requests for 
confidentiality of EWR claims data and production data for light 
vehicles. The agency's EWR CBI rule did not resolve the confidentiality 
of those data. Instead, as noted above, this was left to individual 
requests for confidentiality, if manufacturers chose to submit them. 
And, if a manufacturer did not submit a request covering EWR claims 
data or, for light vehicles, production data, NHTSA was free to release 
those data submitted by the manufacturer. However, NHTSA issued an 
administrative stay of the release of the EWR claims data pending the 
resolution of the litigation and advised manufacturers not to submit 
requests for confidentiality while the stay was in effect. In view of 
the decision and judgment by the Court of Appeals, the stay is no 
longer operative.
    NHTSA is providing manufacturers a limited opportunity to request 
confidentiality for previously submitted EWR claims data (information 
on incidents involving death or injury or property damage claims) and, 
for light vehicles, production data. There are two general groups of 
EWR data at issue. The first is EWR claims data and light vehicle 
production data previously submitted to the agency pursuant to the EWR 
rule. NHTSA's naming convention rules for the submission of electronic 
EWR quarterly reports require manufacturers to denominate their EWR 
submissions with a ``C'' in the Confidentiality Request Identifier to 
indicate that the manufacturer contends that the EWR claims data and/or 
light vehicle production data is confidential. However, the ``C'' in 
the file naming convention alone does not confer confidential treatment 
for EWR claims data and light vehicle production data. Manufacturers 
seeking confidential treatment for this information must submit a 
request pursuant to 49 CFR part 512 to the Chief Counsel of NHTSA by 
mail, express courier (e.g., Fed Ex, UPS, DHL), or hand delivery, which 
is due by August 27, 2008. A request for confidential treatment may be 
made even if an EWR report was submitted without the ``C'' designation. 
If a request for confidential treatment is not submitted by the above 
date, the agency will be free to disclose the data regardless if a 
``C'' is included in the file name of the EWR report.
    The second group of EWR data at issue is EWR claims data and light 
vehicle production data submitted in the future. Consistent with 49 CFR 
part 512, manufacturers choosing to request confidential treatment for 
such data are required to submit individual requests for confidential 
treatment to NHTSA's Chief Counsel in connection with their electronic 
submissions of EWR quarterly reports. While quarterly EWR reports are 
submitted electronically and require a ``C'' in the file naming 
convention to indicate a request for confidential treatment, an 
individualized request under 49 CFR part 512 must also be sent by mail, 
express courier or hand delivery to the Chief Counsel of NHTSA.

     Issued on: July 23, 2008.
Lloyd S. Guerci,
Assistant Chief Counsel for Litigation and Enforcement.
 [FR Doc. E8-17237 Filed 7-25-08; 8:45 am]
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