The following is a brief summary of the Final Rule published on July 28, 2003 in the Federal Register from the United States National Highway Traffic Safety Administration (NHTSA) which revises 49 CFR Part 512 "CONFIDENTIAL BUSINESS INFORMATION." This revised rule will become effective on September 11, 2003.
This rulemaking document amends the regulation on Confidential Business Information to reflect developments in the law and to address the application of the regulation to the early warning reporting regulation issued pursuant to the Transportation Recall Enhancement Accountability, and Documentation (TREAD) Act. In a newly captioned Subpart A, the final rule includes the general provisions that establish the purpose, scope, and applicability of the regulation governing claims for confidential treatment, and that define the terms used in the regulation. Additionally, the final rule revises the definition of confidential business information to reflect developments in the law.
The final rule addresses the number of copies to be submitted to the agency when information is claimed to be confidential. The following must accompany any claim for confidential treatment: (1) A complete copy of the submission, (2) a copy of a public version of the submission and (3) either a second complete copy of the submission or, alternatively, only those portions of the submission containing the material relating to the request for confidential treatment, with any appropriate sections within the pages marked in accordance with this rule. Those filing comments to rulemakings must additionally submit a copy of the public version to the docket. The submissions must also be marked in accordance with this final rule.
The final rule has eliminated the requirement that submitters put into writing personal identifying information from their submissions. The final rule specifies in Subpart B the manner in which information submitted to NHTSA and claimed to be confidential must be marked and identifies the supporting documentation that must accompany each submission. Each page containing information claimed to be confidential must be marked. If an entire page is claimed to be confidential, the markings must indicate this clearly. If portions of a page are claimed to be confidential, they must be marked by enclosing them within brackets "[ ]."
The final rule clarifies issues relating to the duty to amend claims for confidential treatment. It also provides that, when confidentiality is claimed for information obtained by the submitter from a third party, such as a supplier, the submitter is responsible for obtaining from the third party the information that is necessary to comply with the submission requirements of Part 512, including the requirement to submit a certificate and supporting information.
NHTSA remains concerned that submitters may routinely seek confidential treatment for information the agency has consistently determined would not cause competitive harm if released. NHTSA will take appropriate action to discourage those who repeatedly file claims for confidential treatment despite NHTSA's consistent rejection of similar requests.
Consistent with the analysis contained in the October 27, 2000 memo, NHTSA has determined that Section 30166(m)(4)(C) of the TREAD Act did not create a categorical statutory exemption pursuant to Exemption 3 of the FOIA applicable to all early warning reporting information. NHTSA has decided to consider the confidentiality of early warning reporting information pursuant to Exemption 4 of the FOIA, which exempts confidential business information from disclosure. NHTSA has created a series of class determinations covering those portions of the early warning reporting information that NHTSA has determined are entitled to confidential treatment. NHTSA is permitting the information in these classes to be submitted and given confidential treatment without the filing of a part 512 justification and the accompanying certificate.