WASHINGTON — The National Highway Traffic Safety Administration has issued a final rule on the confidentiality of early warning data that is almost identical to the one a federal court remanded to the agency.
The new standard, published in the Federal Register Oct. 19, pleases neither the Rubber Manufacturers Association, which wanted the agency to declare as confidential all early warning data turned over to the agency by tire and auto makers, nor the consumer group Public Citizen, which wants all such information to be made available to the public.
"NHTSA largely has issued the exact same rule, so we have the exact same problem that we did before," an RMA spokesman said.
"Despite losing in the courts, the administration insists on trying again to produce a rule that will keep us in the dark about potential defects and other safety hazards in the cars we drive," Public Citizen President Joan Claybrook said in a news release.
The RMA and Public Citizen still are battling in the U.S. Court of Appeals for the District of Columbia Circuit on whether Exemption 3 of the Freedom of Information Act mandates that all early warning data be kept confidential.
On July 31, 2006, the U.S. District Court for the District of Columbia Circuit ruled that Exemption 3 did not apply to the Transportation Recall Enhancement, Accountability and Documentation Act, and that NHTSA has wide latitude in determining which early warning information is confidential and which isn´t.
Public Citizen supported this ruling, but the RMA appealed it. Oral arguments were heard before the D.C. appeals court Oct. 15, but it will be months before the court can be expected to issue a ruling, the RMA spokesman said.
NHTSA promulgated its original early warning rule in 2002. On March 31, 2006, the D.C. District Court ruled in a case brought by Public Citizen that NHTSA hadn´t given proper consideration to the confidentiality question and remanded the standard to the agency.
In response to the court´s remand, NHTSA issued a proposed rule in October 2006 and completed the rule a year later almost to the day. As it did earlier, the agency cited Exemption 4 of the FOIA Act as its authority for keeping some data confidential.
Exemption 4 allows confidentiality for data that might harm a company´s competitive standing or the government´s ability to gather information if made public.
The information covered under Exemption 4, according to NHTSA, includes production numbers other than for light vehicles, the number of consumer complaints, the number of tire industry warranty adjustments, the number of field reports, copies of field reports and common green tire identifier information.
Also, the new rule states the last six characters of vehicle identification numbers should be kept confidential when reported in early warning submissions concerning deaths and injuries. The standard also clarifies general requirements regarding confidentiality markings in electronic data submissions.
The rule goes into effect Nov. 19. Interested parties have until Dec. 3 to petition for reconsideration.