FMCSA Says Final Rule Protects Privacy of Fleets’ Confidential Business Records
The Federal Motor Carrier Safety Administration has issued a final rule designed to reassure motor carriers that their confidential business information voluntarily given to the government for use in the federal rulemaking process will be protected from public disclosure.
FMCSA said the “rule enhances the agency’s ability to issue regulations that are data-driven and evidence-based.”
The timing of the rule’s release last month coincides with a push by the agency to persuade motor carriers to volunteer proprietary data that can be used to document a cost and safety-benefit analysis for a new entry-level driver training proposed rule, expected as soon as October.
Agency researchers have acknowledged that, so far, they lack sufficient data to make a strong statistical case that federal standards for academic and on-road driver training would produce safer drivers.
The agency’s current dearth of data was a hot topic for a specially appointed committee of truck and bus industry leaders who, in late May, finished their work on the essential ingredients of a “negotiated” proposed rule that would withstand a rigorous review by the White House Office of Management and Budget.
To gain OMB approval, FMCSA officials have said, they will need to show the benefits of a driver training proposal by establishing a statistical link between training for new drivers and their safe-driving record after going to work for a carrier.
To move forward on a new regulation without data would signal a “kiss of death” for a proposed rule, Alan Strasser, an FMCSA regulatory attorney, said recently.
Attempts since the 1980s by federal regulators to come up with a new driver rule have failed to gain support of industry stakeholders.
Officials hope that the confidential business information final rule, issued without seeking public comment, will give motor carriers the assurance they need to open some of their driver data to the government.
Although the concept has been supported in past federal court rulings, the agency’s confidential business information rule establishes formal procedures to protect trade secrets and commercial or financial information voluntarily given to the government.
Annette Sandberg, an attorney with Scopelitis, Garvin, Light, Hanson and Fear, and a former FMCSA administrator, said that motor carriers should be concerned about how well the agency plans to disguise the use of their confidential information in the agency’s public safety benefits analysis.
“There are people that know this industry so well that they can identify say ‘carrier A’ by the routes they travel or number of trucks in their fleet,” Sandberg said.
Such confidential information is one of nine exemptions that Congress included in its Freedom of Information Act. Challenges to the exemption were rejected in a 1992 appeals court decision that the Supreme Court declined to review.
FMCSA’s new regulation requires that a business giving the government information that remains private first fill out an affidavit attesting that it is being offered voluntarily and is the type of information customarily not released to the public.
FMCSA said the rule will assist it in promulgating regulations that are “evidence-based, take into account the operational and financial realities of regulated parties and result in improved safety for motor carriers, drivers and the general public.”
The rule streamlines the procedure for protecting private information, said Rich Pianka, deputy general counsel for American Trucking Associations. “If the government is seeking private information for whatever reason that private entities are not obliged to provide, it is not subject to disclosure under FOIA.”
The confidential business information final rule is expected to benefit many FMCSA rulemaking proposals, an agency spokesman said.
