Rulemaking Procedures--Federal Motor Carrier Safety Regulations; Treatment of Confidential Business Information |
|---|
|
T.F. Scott Darling III
Federal Motor Carrier Safety Administration
June 10, 2015
[Federal Register Volume 80, Number 111 (Wednesday, June 10, 2015)]
[Rules and Regulations]
[Pages 32861-32865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14181]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 389
[Docket No. FMCSA-2015-0168]
RIN 2126-AB79
Rulemaking Procedures--Federal Motor Carrier Safety Regulations;
Treatment of Confidential Business Information
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FMCSA amends its Rulemaking Procedures by adding a new section
establishing the standards and procedures that the Agency will use
regarding the submission of certain
[[Page 32862]]
confidential commercial or financial information that is referred to in
this rule as ``confidential business information'' (CBI). This rule
also sets forth the procedures for asserting a claim of confidentiality
by parties who voluntarily submit CBI to the Agency in connection with
a notice-and-comment rulemaking and in a manner consistent with the
standards adopted in today's rule.
DATES: This final rule is effective June 10, 2015.
FOR FURTHER INFORMATION CONTACT: Kim McCarthy, Office of Chief Counsel,
Regulatory Affairs Division (MC-CCR), Federal Motor Carrier Safety
Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; by
telephone at 202-366-0834. If you have questions on viewing or
submitting material to the public docket, contact Docket Services,
telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION:
Legal Basis for Rulemaking
Section 552(b)(4) of the Freedom of Information Act (FOIA) exempts
from public disclosure ``trade secrets and commercial or financial
information obtained from a person and privileged or confidential''. 5
U.S.C. 552(b)(4). There is a substantial body of Federal case law
interpreting and upholding this exemption, commonly referred to as
``FOIA Exemption 4.'' An underlying theme of the FOIA Exemption 4 cases
is that the exemption is ``intended to protect the government as well
as the individual,'' including advancing the efficiency of government
operations. National Parks & Conservation Ass'n v. Morton, 498 F.2d
765, 767 (D.C. Cir. 1974).
Like other Federal agencies, FMSCA has adopted procedural rules
implementing the FOIA. 49 CFR 389.7. Agencies' procedures for exempting
CBI from disclosure under FOIA vary. In today's rule, FMCSA establishes
procedures that the Agency will use for the submission of certain CBI
that is presumptively exempt from public disclosure under FOIA
Exemption 4. These procedures apply to information voluntarily
submitted to the Agency in response to a notice-and-comment rulemaking
and that falls within the designated classes of information established
in accordance with the rule.
Today's rule incorporates the confidentiality standard for CBI
adopted by the U.S. Court of Appeals for the D.C. Circuit in Critical
Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992) (en banc), in
which the court distinguished between information the government
compels and that which is voluntarily submitted to help further
government functions, such as rulemakings. The court held that
information voluntarily submitted to the government should be treated
as confidential under FOIA Exemption 4 as long as the submitter can
show that it is not customarily released to the general public. Id. at
880.
This regulation is published as a final rule and effective on June
10, 2015. Under the Administrative Procedure Act (APA), agencies may
promulgate final rules only after providing notice and an opportunity
for public comment. 5 U.S.C. 553(b) and (c). This requirement does not
apply, however, to ``interpretative rules, general statements of
policy, or rules of agency organization, procedure or practice.'' 5
U.S.C. 553(b)(A) (emphasis added). Today's final rule establishes
procedures for submitting CBI, and FMCSA therefore determines that
notice and comment is unnecessary. In addition, this rule makes no
substantive changes to the motor carrier safety regulations and is
therefore not a substantive rule subject to the APA's requirement that
publication be made at least 30 days before its effective date. 5
U.S.C. 553(d).
Before prescribing any regulations, FMCSA must also consider their
benefits and costs. 49 U.S.C. 31136(c)(2)(A) and 31502(d). Those
factors are discussed in this final rule.
Background Information
FMCSA has a recurring occasional need to receive CBI in order to
improve the Agency's ability to promulgate regulations that: (1) Are
evidence-based; (2) take into account the operational and financial
realities of regulated parties; and (3) result in improved safety for
motor carriers, drivers, and the general public. Historically, FMCSA
has received limited amounts of usable data submitted as part of the
rulemaking comment process, even in response to specific requests for
data on particular topics. FMCSA believes that the procedures and
confidentiality protections set forth in today's rule will optimize the
Agency's ability to receive necessary CBI in response to notice-and-
comment rulemakings.
The Agency recognizes the need to add confidentiality assurances to
commenters who provide CBI. Today's rule balances the interests of
FMCSA, persons who choose to submit CBI to the Agency, and the public.
First, this rule responds to FMCSA's need for pertinent data by
facilitating its ability to obtain information necessary for the
development of particular rulemakings. Today's rule authorizes the
FMCSA Administrator to define classes of information, which are
presumptively confidential, based on the confidentiality standard for
voluntarily submitted information adopted by the D.C. Circuit in
Critical Mass, as noted above. Under the procedures adopted, the
specific items of information included within a class will be
determined on an as needed basis, depending on the informational
requirements of each particular rulemaking. Because the Agency will
invite the submission of CBI that is specifically calibrated to inform
the rulemaking, FMCSA believes this procedure will significantly
enhance the efficacy of responsive comments and, ultimately, the final
rule.
Second, by making confidential class determinations, this rule will
alleviate the burden on commenters to submit individual claims for
confidential treatment, as well as the Agency's burden to evaluate
requests for confidential treatment submitted on an individual basis.
Third, this rule responds to the interests of commenters who wish
to protect their submitted information from disclosure in the public
domain because it is confidential within the meaning of the FOIA. It
establishes the standards and procedures by which submitters of CBI
must substantiate their request for confidential treatment. Today's
rule also states that, if those qualifying requirements are met and
maintained, the Agency will not disclose the CBI in the public docket
or in response to a FOIA request.
Fourth, this rule responds to the public's interest in transparency
and disclosure in the rulemaking process. It requires FMCSA to describe
through summarization, aggregation, or some other de-identified means,
any CBI submitted in accordance with these procedures and on which the
Agency relies in developing a final rule. FMCSA must also explain how
such CBI assisted in formulating that final rule.
Finally, this rule permits the public disclosure of information
initially designated as confidential by the submitter if the Agency
finds that the submitter fails to meet or maintain the confidentiality
criteria established in this rule. In addition, to the extent that
commenters who choose to submit CBI in accordance with the adopted
procedures also wish to provide non-confidential information, their
comments must be segregated and filed in the rulemaking's public
docket.
[[Page 32863]]
Regulatory Analyses
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA considered the impact of this procedural rule under Executive
Orders 12866 and 13563 and DOT's regulatory policies and procedures (44
FR 11034; February 26, 1979). The Agency has determined this rule does
not constitute a significant regulatory action within the meaning of
Executive Order 12866, as supplemented by Executive Order 13563, or
DOT's regulatory policies and procedures.
FMCSA expects that the economic impact of this rule will be
minimal, as it merely codifies the procedures by which CBI may be
voluntarily submitted to FMCSA in connection with notice-and-comment
rulemakings. This rule does not alter the confidentiality threshold
established by FOIA Exemption 4, as currently reflected in the FOIA
procedures of both FMCSA (49 CFR 389.5(b)) and the DOT (49 CFR part 7).
It is adopted to address the concerns of potential submitters of CBI as
well as the Agency's need to receive certain commercial and financial
information that is eligible for confidential treatment under FOIA
Exemption 4.
Today's rule imposes a minimal additional burden on parties who
elect to submit CBI to FMCSA since they will now be required to
complete a standardized affidavit certifying that the submitted
information meets the confidentiality threshold established by FOIA
Exemption 4. FMCSA expects that the amount of time and resources that
CBI submitters will devote to completing the standardized CBI affidavit
will be minimal. This rule does not change the current burden imposed
on submitters to ensure that the information they designate as
confidential meets the established FOIA criteria.
The Agency may realize additional costs associated with its use of
resources to review submitted CBI, subjected to request for public
disclosure under the FOIA, in order to confirm that the information is
withheld from the public in accordance with FOIA Exemption 4. We expect
the increase in the use of Agency resources devoted to FOIA review will
be minimal. Although this rule does not change the Agency's current
role in reviewing confidential information subject to request for
disclosure under the FOIA, we anticipate that the volume of FOIA
requests may increase due to the fact that FMCSA will specifically
solicit CBI for submission under informational categories established
in accordance with today's final rule. Today's rule is intended to
increase the amount of CBI submitted to the Agency. FMCSA expects any
additional FOIA review costs will be minimal, however, since CBI will
be submitted under informational categories already determined by the
Agency to be presumptively confidential.
FMCSA believes the potential marginal increase in costs associated
with the adoption of this rule is more than outweighed by the benefits
for both submitters of CBI and for the Agency. In addition, this rule
enhances FMCSA's ability to promulgate rules that are data-driven and
evidence-based; therefore, regulated entities and the public will also
benefit.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C.
601 et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not
required to prepare a final regulatory flexibility analysis under 5
U.S.C. 604(a) for this final rule because the agency has not issued a
notice of proposed rulemaking prior to this action. FMCSA has therefore
determined that it has good cause to adopt the rule without notice-and-
comment.
Assistance to Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this final rule so that they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the final rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the FMCSA point of
contact, Ms. Kim McCarthy, listed in the FOR FURTHER INFORMATION
CONTACT section of this final rule.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $151 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2012 levels) or more in any one year. Though this rule will not result
in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
Paperwork Reduction Act
This final rule will call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Executive Order 13132 (Federalism)
A rule has implications for Federalism under Section 1(a) of
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' FMCSA has determined that this final
rule will not have substantial direct costs on or for States, nor would
it limit the policymaking discretion of States. Nothing in this
document preempts any State law or regulation. Therefore, this rule
does not have sufficient Federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b) (2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this final rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, the Agency does not anticipate that this
regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
FMCSA reviewed this final rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property
[[Page 32864]]
Rights, and has determined it will not effect a taking of private
property or otherwise have taking implications.
Privacy
The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118
Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a
privacy impact assessment (PIA) of a regulation that will affect the
privacy of individuals. This rule does not involve the collection of
personally identifiable information (PII).
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a privacy impact assessment.
Executive Order 12372 (Intergovernmental Review of Federal Programs)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs do not apply to this
program.
Executive Order 13211 (Energy Supply, Distribution or Use)
FMCSA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
Indian Tribal Governments (E.O. 13175)
This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
National Technology Transfer and Advancement Act (Technical Standards)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This rule does not use
technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
Environment (NEPA, CAA, Environmental Justice)
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined that this action is categorically excluded from further
analysis and documentation in an environmental assessment or
environmental impact statement under FMCSA Order 5610.1 (69 FR 9680,
March 1, 2004), Appendix 2, paragraph (6b) that covers editorial and
procedural regulations. The CE is available for inspection or copying
in the Regulations.gov Web site listed under ADDRESSES.
FMCSA also analyzed this action under the Clean Air Act, as amended
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it does not affect direct or indirect emissions of
criteria pollutants.
Under E.O. 12898, each Federal agency must identify and address, as
appropriate, ``disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on
minority populations and low-income populations'' in the United States,
its possessions, and territories. FMCSA evaluated the environmental
justice effects of this rule in accordance with the E.O. and has
determined that no environmental justice issue is associated with this
rule, nor is there any collective environmental impact that would
result from its promulgation.
List of Subjects in 49 CFR Part 389
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety.
In consideration of the foregoing, FMCSA amends 49 CFR part 389 to
read as follows:
PART 389--RULEMAKING PROCEDURES--FEDERAL MOTOR CARRIER SAFETY
ADMINISTRATION
0
1. The authority citation for part 389 continues to read as follows:
Authority: 49 U.S.C. 113, 501 et seq., subchapters I and III of
chapter 311, chapter 313, and 31502; 42 U.S.C. 4917; and 49 CFR
1.87.
0
2. Add a definition of ``Confidential business information'' to Sec.
389.3 in alphabetical order to read as follows:
Sec. 389.3 Definitions.
* * * * *
Confidential business information means trade secrets or commercial
or financial information that is privileged or confidential, as
described in 5 U.S.C. 552(b)(4). Commercial or financial information is
considered confidential if it was voluntarily submitted and is the type
of information that is customarily not released to the general public
by the person or entity from whom it was obtained.
0
3. Add Sec. 389.9 to subpart A to read as follows:
Sec. 389.9 Treatment of confidential business information.
(a) Purpose. This section establishes the standards and procedures
by which the Agency will solicit and receive certain confidential
commercial or financial information, as that term is used in the
Freedom of Information Act (5 U.S.C. 552(b)(4)), categorically referred
to below as ``confidential business information,'' and the manner in
which the Agency will protect such information from public disclosure
in accordance with 5 U.S.C. 552(b)(4).
(b) Confidential class determinations. The Administrator may make
and issue a class determination, which shall pertain to a specified
rulemaking and shall clearly identify categories of information
included within the class. Information submitted under the class
determination and conforming to the characteristics of the class will
be treated as presumptively confidential and accorded the non-
disclosure protections described in paragraph (h) of this section. The
Administrator may establish a class upon finding that:
(1) FMCSA seeks to obtain related items of commercial or financial
[[Page 32865]]
information as described in 5 U.S.C. 552(b)(4);
(2) The class determination would facilitate the voluntary
submission of information necessary to inform the rulemaking; and
(3) One or more characteristics common to each item of information
in the class will necessarily result in identical treatment, and that
it is therefore appropriate to treat all such items as a class under
this section.
(c) Frequency and content of class determinations. Class
determinations may be defined by the Administrator on an as needed
basis and shall include substantive criteria established in accordance
with the informational needs of the particular rulemaking.
(d) Modification or amendment. The Administrator may amend or
modify any class determination established under this section.
(e) Publication. Once the Administrator has made a class
determination, the Agency shall publish the class determination in the
Federal Register. If the Administrator amends or modifies any class
determination established and published in accordance with this
section, such changes will be published in the Federal Register.
(f) Submission of confidential business information. Persons
wishing to submit information in accordance with a class determination
established under authority of this section must complete and sign,
under penalties of perjury, an Affidavit in Support of Request for
Confidentiality (Affidavit), as set forth in Appendix A to this part.
In the event that information is submitted under more than one
designated class, each submission must include an executed Affidavit,
asserting, among other factors, that:
(1) The information is submitted to the Agency voluntarily;
(2) The information is of a type customarily not disclosed to the
public by the submitter;
(3) The information, to the best of the submitter's knowledge and
belief, has not been disclosed to the public; and
(4) The information satisfies the substantive criteria for the
class as established by the Administrator under authority of paragraph
(b) of this section.
(g) Submission of comments not containing confidential business
information. If a submitter elects to provide commentary in addition to
the confidential business information submitted under one or more
classes designated under this section, any portion of a submitter's
additional commentary that does not contain confidential business
information shall be filed in the public docket in the form and manner
set forth in the rulemaking.
(h) Non-disclosure of confidential business information. In
accordance with the provisions of 5 U.S.C. 552(b)(4), information
submitted under this section shall not be available for inspection in
the public docket, nor shall such information be provided by the Agency
in response to any request for the information submitted to the Agency
under 5 U.S.C. 552, except as provided for in paragraph (j) of this
section.
(1) If a requester brings suit to compel the disclosure of
information submitted under this section, the Agency shall promptly
notify the submitter.
(2) The submitter may be joined as a necessary party in any suit
brought against the Department of Transportation or FMCSA for non-
disclosure.
(i) Use of confidential business information. To the extent that
the Agency relies upon confidential business information submitted
under paragraph (f) of this section in formulating a particular rule,
the Agency shall, in the preamble of the final rule, disclose its
receipt of such information under a designated class and shall describe
the information in a de-identified form, including by summary,
aggregation or other means, as necessary, to sufficiently explain the
Agency's reasoning while maintaining the confidentiality of the
information.
(j) Disclosure of confidential business information. (1) If the
Administrator finds that information submitted to the Agency under
paragraph (f) of this section fails to satisfy the requirements set
forth in paragraphs (f)(2), (3) or (4), or that the Affidavit
accompanying the information submitted under paragraph (f) is false or
misleading in any material respect, the Agency shall disclose the non-
conforming information by placing it in the public docket for the
particular rulemaking, within 20 days following written notice to the
submitter of its decision to do so, except that:
(i) Submitters may, within 10 days of receipt of such notice,
provide the Agency with a written statement explaining why the
submitted information conforms to the requirements of paragraph (f) of
this section and thus, should not be disclosed. The Agency shall
continue to withhold the information from the public docket until
completing its review of the submitter's statement. The Agency may,
following timely review of the submitter's statement, determine that
disclosure is not required under this paragraph. In any event, the
Agency shall advise the submitter in writing of its decision concerning
whether the information shall be disclosed in the public docket.
(ii) [Reserved]
(2) Notice of the Agency's intention to disclose the submitted
information is not required if the Administrator determines that the
entity submitting such information has authorized its disclosure to the
public.
(3) If, at the time the Administrator determines that the submitted
information fails to comply with the requirements set forth in
paragraph (f), such information is the subject of a FOIA request, the
requirements of 49 CFR 7.29 shall apply.
0
4. Add Appendix A to Part 389 to read as follows:
APPENDIX A TO PART 389
AFFIDAVIT IN SUPPORT OF REQUEST FOR CONFIDENTIALITY
I, _______, pursuant to the provisions of 49 CFR part 389,
section 389.9, state as follows:
(1) I am [insert official's name, title] and I am authorized by
[insert name of entity] to execute this Affidavit on its behalf;
(2) I certify that the information contained in the document(s)
attached to this Affidavit is submitted voluntarily, with the claim
that the information is entitled to confidential treatment under 5
U.S.C. 552(b)(4);
(3) I certify that the information contained in the documents
attached to this Affidavit is of a type not customarily disclosed to
the general public by [insert name of entity];
(4) I certify that, to the best of my knowledge, information and
belief, the information contained in the documents attached to this
Affidavit, for which confidential treatment is claimed, has never
been released to the general public or been made available to any
unauthorized person outside [insert name of entity];
(5) I certify that this information satisfies the substantive
criteria set forth in the notice published in the Federal Register
on ___[insert date of rule-specific publication in month/day/year
format] under FMCSA Docket Number [insert docket number].
(6) I make no representations beyond those made in this
Affidavit, and, in particular, I make no representations as to
whether this information may become available outside [insert name
of entity] due to unauthorized or inadvertent disclosure; and
(7) I certify under penalties of perjury that the foregoing
statements are true and correct.
Executed on this __day of __, __.
_________(signature of official)
Issued under the authority of delegation in 49 CFR 1.87. May 27,
2015.
T.F. Scott Darling III,
Chief Counsel.
[FR Doc. 2015-14181 Filed 6-9-15; 8:45 am]
BILLING CODE 4910-EX-P