Public Citizen, Inc. v. Mineta

• Decision Date: 31 March 2006
• Docket Number: No. CIV.A. 04-0463(RJL).,CIV.A. 04-0463(RJL).
• Citation: 427 F.Supp.2d 7
• Parties: PUBLIC CITIZEN, INC., Plaintiff, v. Norman Y. MINETA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

427 F.Supp.2d 7

PUBLIC CITIZEN, INC., Plaintiff, v. Norman Y. MINETA, et al., Defendants.

No. CIV.A. 04-0463(RJL).

United States District Court, District of Columbia.

March 31, 2006.

COPYRIGHT MATERIAL OMITTED

David J. Arkush, Scott Lawrence, Public Citizen Litigation Group, Washington, DC, for Plaintiff.

Lisa Sheri Goldfluss, United States Attorney's Office, Adam Charles Sloane, Brad P. Rosenberg, Erika Ziebarth Jones, Mayer, Brown, Rowe & Maw, LLP, Christopher H. Grigorian, Arent, Fox, Kintner. Plotkin & Kahn, Washington, DC, for Defendants.

Eugene Scalia, Rachel A. Clark, Gibson, Dunn & Crutcher LLP, Washington, DC. for Intervenor.

MEMORANDUM OPINION

(March 30, 2006) [# 17, # 18, # 22, # 27]

LEON, District Judge.

Plaintiff, Public Citizen, Inc. ("Public Citizen") brought this action against Norman Y. Mineta, Secretary, United States Department of Transportation, under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706, challenging regulations promulgated by the National Highway Traffic Safety Administration's ("NHTSA" or "agency") which categorically exempt, from disclosure certain types of data under the Freedom of Information Act ("FOIA") maintained by the automobile and tire manufacturing industry. Alliance of Automobile Manufacturers, Inc. ("Automobile Manufacturers") entered the action as an intervenor-defendant, and Rubber Manufacturers Association ("Rubber Manufacturers") entered the action as an intervenor-defendant and cross-claimant. Presently before the Court are cross-motions for summary judgment. Upon due consideration of the parties' submissions, the relevant law, and the entire record herein, the Court finds that the agency's Notice of Proposed Rulemaking ("NPRM") failed to provide adequate notice and opportunity to comment and that the final rule was not the logical outgrowth of the proposed rule. Accordingly, the Court GRANTS IN PART and DENIES IN PART Public Citizen's motion for summary judgment and therefore GRANTS IN PART and DENIES IN PART Mineta's, Alliance's and RMA's cross-motions for summary judgment, and REMANDS the matter to NHTSA for further action as it may wish to take in light of this holding.

BACKGROUND

On October 11, 2000, Congress passed the Transportation Recall Enhancement, Accountability, and Documentation ("TREAD") Act, which requires automobile manufacturers to submit various types of data to NHTSA pursuant to "early warning" regulations ("EWR"). 49 U.S.C. § 30166(m). The TREAD Act directed the Secretary of Transportation to institute rulemaking proceedings to implement the EWR requirements. 49 U.S.C. § 30166(m)(1). In accordance with this mandate, NHTSA published the final EWR regulation on July 10, 2002. As summarized by Defendant Mineta, the data submitted to NHTSA under the EWR regulation includes:

• Production numbers (cumulative total of vehicles or items of equipment manufactured in the year);

• incidents involving death or injury based on claims and notices received by the manufacturer;

• claims relating to property damage received by the manufacturer;

• warranty claims paid by the manufacturer (generally for repairs on relatively new products) pursuant to a warranty program (in the tire industry these are warranty adjustment claims);

• consumer complaints (a communication by a consumer to the manufacturer that expresses dissatisfaction with the manufacturer's product or performance of its product or an alleged defect; and

• field reports (prepared by the manufacturer's employees or representatives concerning failure, malfunction, lack of durability or other performance problem of a motor vehicle or item of motor vehicle equipment.

Def. Mineta's Mem. Supp. Summ. J. at 6.

On April 30, 2002, NHTSA published a Confidential Business Information ("CBI") NPRM in the Federal Register. See 67 Fed.Reg. 21,198 (Apr. 30, 2002). NHTSA stated that the purposes of the proposed rule was "to amend the regulation on Confidential Business Information [set forth at 49 C.F.R. Part 512]," "to simplify and improve the clarity of the regulation," and "to ensure the efficient processing of requests for confidential treatment and proper protection for sensitive business information received by NHTSA." Id. The NPRM stated that "the proposal would continue to provide that the agency may issue class determinations, under which NHTSA decides that a class of information is presumed to cause competitive harm if released." Id. at 21,199. In determining what classes of information would be presumed to cause competitive harm if released, the agency considered the types of information that is submitted to the agency and the types of information that the agency "is likely to receive in the future, such as pursuant to the new `early warning' requirements." Id. at 21,200. When discussing the presumption that certain information would be deemed to not cause competitive harm, the agency stated that a manufacturer who feels that the release of the information "may result in competitive harm, may seek to rebut the presumption and claim confidential treatment based on competitive harm." Id. Alternatively, if the information that a manufacturer submits to NHTSA falls within the class of information that is presumed to cause competitive harm, the manufacturer "may not seek confidential treatment for that information unless the submitter also certifies that appropriate measures have been taken to maintain its confidentiality and that it has not been released to the public." Id. Specifically addressing the material that is required to be submitted to NHTSA under the EWR requirements, the NPRM stated that

We are also interested in receiving comments regarding whether any of the proposed class determinations should be applicable to the material to be submitted under the agency's "early warning" regulations and whether any additional class determinations should be established. . . . The agency seeks comments regarding whether the agency should presumptively determine that these (or a subset of these) types of documents would or would not cause competitive harm to the submitter if released.

Id. at 21,200. NHTSA required that all comments be received by July 1, 2002. Id. at 21,198. Public Citizen did not submit comments during the specified period, but did meet with NHTSA officials on October 17, 2002 and subsequently submitted late comments on or about November 27, 2002. (Pl.'s, Mem. Supp. Summ. J. at 6-7; Def. Mineta's Statement of Material Facts As To Which There Is No Genuine Issue 6 ("Def. Mineta's Statement of Material Facts").)

On July 28, 2003, NHTSA published the initial final CBI rule. See 68 Fed.Reg. 44,209 (July 28, 2003). The initial final rule stated that certain classes of EWR data (warranty claim data, field report information, consumer complaint data, and production data, other than light vehicles) would cause competitive harm and were therefore exempt from disclosure under Exemption 4 of FOIA. 49 C.F.R. § 512, App. C (2003). Additionally, the agency rejected suggestions to adopt similar class determinations for EWR data on incidents involving death or injury and claims of damage to property. See 68 Fed.Reg. at 44221-22. The initial final rule did not provide, however, that any of the EWR data would be presumed to cause, or not cause, competitive harm as the NPRM indicated. Compare 67 Fed.Reg. at 21,200, with 68 Fed.Reg. at 44,216-26, 44,232. Public Citizen Litigation Group ("Public Citizen"), Rubber Manufacturers, and Automobile Manufacturers all filed administrative petitions for reconsideration of the initial final rule with NHTSA. 69 Fed. Reg. 21,409, 21,410 (April 21, 2004). Public Citizen sought to require disclosure of all EWR data on the ground that NHTSA was not authorized to adopt class determinations. Id. at 21,411. The Rubber Manufacturers sought confidential treatment of all EWR data, including incidents of death, injury and property damage, under FOIA Exemption 3, or in the alternative under FOIA Exemption 4. Id. Finally, Automobile Manufacturers asserted that the last six digits of a vehicle's VIN should be withheld under FOIA Exemption 6. Id. at 21,415.

On April 21, 2004, NHTSA issued its final CBI rule and its response to the petitions for reconsideration. 69 Fed.Reg. 21,409 (April 21, 2004). NHTSA responded to the petitions by denying Public Citizen's request for disclosure of all EWR data and Ruber Manufacturers' request for confidential treatment of all EWR data. Id. at 21,410. Furthermore, NHTSA granted the Rubber Manufacturers' reconsideration request to create a confidential class determination for common green tire data pursuant to FOIA Exemption 4 and granted the Automobile Manufacturers' reconsideration request to create confidential class determination for the last six digits of VIN numbers pursuant to FOIA Exemption 6. Id. at 21,414-16. In response to the issuance of the initial final rule, Public Citizen filed its complaint in the instant action on March 22, 2004 (Dkt.# 1.)

ANALYSIS

I. STANDARD OF REVIEW

Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment may support its motion by "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." See Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). In opposing summary judgment, the "nonmoving party [must] go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P....