[Code of Federal Regulations]
[Title 49, Volume 5]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR512.4]

[Page 61-63]
 
                        TITLE 49--TRANSPORTATION
 
                            OF TRANSPORTATION
 
PART 512--CONFIDENTIAL BUSINESS INFORMATION--Table of Contents
 
Sec. 512.4  Asserting a claim for confidential treatment of information.

    (a) Any person submitting information to NHTSA and requesting that 
the information be withheld from public disclosure as confidential 
business information shall:
    (1) Stamp or mark ``confidential,'' or some other term which clearly 
indicates the presence of information claimed to be confidential, on the 
top of each page containing information claimed to be confidential.
    (2) On each page marked in accordance with paragraph (a)(1) of this 
section, mark each item of information which is claimed to be 
confidential with brackets``[ ]''.
    (3) If an entire page is claimed to be confidential, indicate 
clearly that the entire page is claimed to be confidential.
    (4) Submit two copies of the documents containing allegedly 
confidential information (except only one copy of blueprints) and one 
copy of the documents from which information claimed to be confidential 
has been deleted to the Office of Chief Counsel, National Highway 
Traffic Safety Administration, Room 5219, 400 Seventh Street, SW., 
Washington, DC 20590. Include the name, address, and telephone number of 
a representative for receipt of a response from the Chief Counsel under 
this part.
    (5) If a document containing information claimed to be confidential 
is submitted in connection with an investigation or proceeding, a 
rulemaking action, or pursuant to a reporting requirement, for which 
there is a public file or docket, simultaneously submit to the 
appropriate NHTSA official a copy of the document from which information 
claimed to be confidential has been deleted. This copy will be placed in 
the public file or docket pending the

[[Page 62]]

resolution of the claim for confidential treatment.
    (b)(1) When submitting each item of information marked confidential 
in accordance with paragraph (a) of this section, the submitter shall 
also submit to the Office of the Chief Counsel information supporting 
the claim for confidential treatment in accordance with paragraph (b)(3) 
and paragraph (e) of this section.
    (2) If submission of the supporting information is not possible at 
the time the allegedly confidential information is submitted, a request 
for an extension of time in which to submit the information, accompanied 
by an explanation describing the reason for the extension and the length 
of time needed, must be submitted. The Chief Counsel shall determine the 
length of the extension. The recipient of an extension shall submit the 
supporting information in accordance with the extension determination 
made by the Chief Counsel and paragraph (b)(3) of this section.
    (3) The supporting information must show:
    (i) That the information claimed to be confidential is a trade 
secret, or commercial or financial information that is privileged or 
confidential.
    (ii) Measures taken by the submitter of the information to ensure 
that the information has not been disclosed or otherwise made available 
to any person, company, or organization other than the submitter of the 
information.
    (iii) Insofar as is known by the submitter of the information, the 
extent to which the information has been disclosed, or otherwise become 
available, to persons other than the submitter of the information, and 
why such disclosure or availability does not compromise the confidential 
nature of the information.
    (iv) Insofar as is known by the submitter of the information, the 
extent to which the information has appeared publicly, regardless of 
whether the submitter has authorized that appearance or confirmed the 
accuracy of the information. The submitter must include citations to 
such public appearances, and an explanation of why such appearances do 
not compromise the confidential nature of the information.
    (v) Prior determinations of NHTSA or other Federal agencies or 
Federal courts relating to the confidentiality of the submitted 
information, or similar information possessed by the submitter including 
class determinations under this part. The submitter must include any 
written notice or decision connected with any such prior determination, 
or a citation to any such notice or decision, if published in the 
Federal Register.
    (vi) Whether the submitter of the information asserts that 
disclosure would be likely to result in substantial competitive harm, 
what the harmful effects of disclosure would be, why the effects should 
be viewed as substantial, and the causal relationship between the 
effects and disclosure.
    (vii) If information is voluntarily submitted, why disclosure by 
NHTSA would be likely to impair NHTSA's ability to obtain similar 
information in the future.
    (viii) Whether the submitter of the information asserts that 
disclosure would be likely to impair other protectable government 
interests, what the effect of disclosure is likely to be and why 
disclosure is likely to impair such interests.
    (ix) The period of time for which confidentiality is claimed 
(permanently or until a certain date or until the occurrence of a 
certain event) and why earlier disclosure would result in the harms set 
out in paragraph (b)(2)(vi), (vii) or (viii) of this section.
    (c) If any element of the showing to support a claim for 
confidentiality required under paragraph (b)(3) of this section is 
presumptively established by a class determination, as issued pursuant 
to Sec. 512.10, affecting the information for which confidentiality is 
claimed, the submitter of information need not establish that element 
again.
    (d) Information in support of a claim for confidentiality submitted 
to NHTSA under paragraph (b) of this section must consist of objective 
data to the maximum extent possible. To the extent that opinions are 
given in support of a claim for confidential treatment of information, 
the submitter of the information shall submit in writing to NHTSA the 
basis for the opinions, and the name, title and credentials

[[Page 63]]

showing the expertise of the person supplying the opinion.
    (e) The submitter of information for which confidential treatment is 
requested shall submit to NHTSA with the request a certification in the 
form set out in appendix A from the submitter or an agent of the 
submitter that a diligent inquiry has been made to determine that the 
information has not been disclosed, or otherwise appeared publicly, 
except as indicated in accordance with paragraphs (b)(3)(iii) and (iv) 
of this section.
    (f) A single submission of supporting information, in accordance 
with paragraph (b) of this section, may be used to support a claim for 
confidential treatment of more than one item of information claimed to 
be confidential. However, general or nonspecific assertions or analysis 
may be insufficient to form an adequate basis for the agency to find 
that information may be afforded confidential treatment, and may result 
in the denial of a claim for confidentiality.
    (g) Where confidentiality is claimed for information obtained by the 
submitter from a third party, such as a supplier, the submitter of the 
information is responsible for obtaining all information and a 
certification from the third party necessary to comply with paragraphs 
(b), (d) and (e) of this section.
    (h) Information received by NHTSA that is identified as confidential 
and whose claim for confidentiality is submitted in accordance with this 
section will be kept confidential until a determination of its 
confidentiality is made under section 512.6 of this part. Such 
information will not be publicly disclosed except in accordance with 
this part.
    (i) A submitter of information shall promptly amend supporting 
information provided under paragraphs (b) or (e) of this section if the 
submitter obtains information upon the basis of which the submitter 
knows that the supporting information was incorrect when provided, or 
that the supporting information, though correct when provided, is no 
longer correct and the circumstances are such that a failure to amend 
the supporting information is in substance a knowing concealment.
    (j) Noncompliance with this section may result in a denial of a 
claim for confidential treatment of information. Noncompliance with 
paragraph (i) of this section may subject a submitter of information to 
civil penalties.
    (l) If the submitter fails to comply with paragraph (a) of this 
section at the time the information is submitted to NHTSA so that the 
agency is not aware of a claim for confidentiality, or the scope of a 
claim for confidentiality, the claim for confidentiality may be waived 
unless the agency is notified of the claim before the information is 
disclosed to the public. Placing the information in a public docket or 
file is disclosure to the public within the meaning of this part, and 
any claim for confidential treatment of information disclosed to the 
public may be precluded.
    (2) If the submitter of the information does not provide all of the 
supporting information required in paragraphs (b)(3) and (e) of this 
section, or if the information is insufficient to establish that the 
information may be afforded confidential treatment under the substantive 
tests set out in Sec. 512.5, a request that such information be afforded 
confidential protection may be denied. The Chief Counsel may notify a 
submitter of information of inadequacies in the supporting information, 
and may allow the submitter additional time to supplement the showing, 
but is under no obligation to provide either notice or additional time 
to supplement the showing.