Judge Orders NHTSA To Revisit Early Warning Records Rulemaking

Reprinted from The Safety Record, V3 Issue 3, May/June 2006

Washington, D.C. - A U.S. District Court judge has kicked the National Highway Traffic Safety Administration final rule on the confidentiality of records submitted under the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act back to the agency. On March 31, Judge Robert Leon found that NHTSA "pulled a switcheroo" when it published its Business Information Confidentiality rule regarding the confidentiality of defect-related information in the early warning database established under TREAD nearly three years ago, and did not allow adequate opportunity for public comment.

Public Citizen, a consumer advocacy group, brought suit, arguing that NHTSA's July 2003 rule deviated substantially from its initial proposal and was in violation of the Freedom of Information Act by broadly determining that whole classes of early warning data are categorically confidential. Judge Leon agreed with Public Citizen's procedural claims, ruling that NHTSA had proposed the regulatory presumptions of confidentiality, and then created a rule that categorically granted confidentiality to entire classes of such information.

NHTSA spokesman Rae Tyson said that the agency has made no decision on its next move.

"It's going to be in consultation with the Justice Department and they are still talking about it," he said.

The dispute emanates from a provision in the October 2000 TREAD Act, which required the U.S. Department of Transportation to establish a rule mandating that manufacturers submit certain types of data-such as warranty claims, production numbers, property damage claims, injury-causing and fatal incidents, consumer complaints and field reports-as part of an early warning system that was intended to alert regulators to defects like the Explorer - Firestone ATX / Wilderness. On April 30, 2002, NHTSA published a notice of proposed rulemaking on the confidentiality of information submitted under the TREAD Act. The agency said that it intended to update its current regulations and create a clear, easy-to-follow rule that would allow it to process confidential information efficiently and protect sensitive business information. The agency sought comment on whether it should create classes of information that would be presumed to be public and others that would be treated confidentially because their release would cause competitive harm. For example, blueprints and engineering drawings, future model plans and future vehicle production and sales information on specific models would be presumed confidential.

Manufacturers responded by suggesting that all information submitted under the TREAD Act's early warning regulation should be considered confidential unless the agency made a finding to the contrary. Some, led by the Rubber Manufacturers Association argued that the TREAD Act exempted by law the early warning data. The Alliance of Automobile Manufacturers argued that NHTSA could grant the information confidentiality under two current exemptions for investigative records and for confidential business information. Public Citizen supported NHTSA's view that the TREAD Act did not automatically exempt the early warning data from the public file and that revealing warranty and property damage claims and consumer complaints would not harm businesses.

When the agency published the first version of its final rule in July 2003, it announced that death and injury data would be publicly disclosed. However, it created a categorical exemption that ensured the secrecy of warranty claims, field reports, consumer complaints and production data, even if a FOIA request for such information was submitted to the agency.

Public Citizen, the RMA and the AAM filed petitions for reconsideration. Public Citizen argued that all early warning data should be public, because NHTSA was not authorized to adopt class determinations. The RMA argued that all of the information should be confidential. AAM asked that the last six digits of a vehicle's VIN be withheld.

When NHTSA published the final rule on April 21, 2004, more early warning data became confidential. The agency rejected Public Citizen's petition, but granted the RMA's request to shield all data on common green tires from public view and the Alliance's petition for obscuring part of the VIN.

In response, Public Citizen immediately filed suit. U.S. Secretary of Transportation Norman Mineta, the RMA and the Alliance filed cross motions for summary judgment.

The U.S. District Court's judgment handed Public Citizen a partial victory. It noted that NHTSA can create categorical exemptions, because to require the agency to consider each document in a certain class individually may hamper the administration of the law. However, the court took issue with the way that NHTSA arrived at the final rule. Because the agency reversed its position on the presumption of confidentiality to categorical exemptions, the final rule was not a logical outgrowth of the original proposal, depriving the public of any meaningful opportunity to comment on it. The court remanded the issue back to NHTSA for further action.

Laura MacCleery, an attorney with Public Citizen says the ruling does little to resolve the central issue - whether NHTSA can keep the information collected under the TREAD Act out of its public files.

"The real tragedy is that the TREAD Act was passed in 2000. It is 2006 and we still do not have this information publicly available," MacCleery said. "This is an outrageous perversion of what Congress intended. They wanted a public database and it's been hijacked by an agency catering to the automakers' keen interest in secrecy. Meanwhile, the defect cover-ups continue."

Moreover, the dispute has delayed investigations into critical public health threats.

For example, an analysis by Randy A. Whitfield of Quality Control Systems Corporation has found that the 2000 and 2001 recall campaigns intended to replace the Bridgestone/Firestone Wilderness ATX tires on the Ford Explorer fleet slowed tire-related Ford Explorer fatalities, but only slightly. Whitfield was able to extract the number of tire-related Explorer crash deaths using the existing Fatality Analysis Reporting System data. In 2003 and 2004, the death toll began to rise again - but why remains a mystery. Assuming that manufacturers are complying with the law, Whitfield says that the TREAD data could help determine whether the FARS data undercounts the deaths and what kind of tires are failing.

"Those are two pretty important pieces of information we need to unravel this," Whitfield says. "The situation we have now looks like some kind of terrible experiment."

Researchers might discover, for example, that the recall did not remove enough ATX tires from the fleet. Regardless, says Whitfield, the data could help determine how to prevent more deaths.

"That's why were after the TREAD data," he says. "And that's why we don't want NHTSA to keep the information secret."

Copyright © Safety Research & Strategies, Inc., 2006

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