United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2007 Decided July 22, 2008
No. 06-5304
PUBLIC CITIZEN, INC.,
APPELLEE
v.
RUBBER MANUFACTURERS ASSOCIATION,
APPELLANT
MARY E. PETERS, SECRETARY, U.S. DEPARTMENT OF
TRANSPORTATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 04cv00463)
Eugene Scalia argued the cause for the appellant. With him
on the briefs was Laurie T. Baulig.
Scott L. Nelson argued the cause for appellee Public Citizen,
Inc. With him on the brief was David Arkush.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for the federal appellee. With her on the brief were Jeffrey A.
Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
2
Attorney, and Lloyd S. Guerci, Assistant Chief Counsel,
National Highway Traffic Safety Administration.
Before: RANDOLPH and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: A provision of the Transportation
Recall Enhancement, Accountability, and Documentation
(TREAD) Act limits the disclosure, “pursuant to section
30167(b)” of the National Traffic and Motor Vehicle Safety Act,
of certain early warning reporting data. Appellant Rubber
Manufacturers Association contends that the limits imposed by
the TREAD Act apply not only to disclosures made “pursuant to
section 30167(b),” but also to disclosures made in response to
requests under the Freedom of Information Act. The Secretary
of Transportation, appellee Public Citizen, Inc., and the district
court all disagree with the Rubber Manufacturers Association.
We do as well. Concluding that the plain language of the
TREAD Act means what it says, we affirm the judgment of the
district court.
I
The National Traffic and Motor Vehicle Safety Act of 1966
(the Safety Act) requires manufacturers of motor vehicles and
motor vehicle equipment to submit certain information to the
National Highway Traffic Safety Administration (NHTSA) in
order “to reduce traffic accidents and deaths and injuries
resulting from traffic accidents.” 49 U.S.C. § 30101. In
November 2000, Congress enacted the TREAD Act, Pub. L. No.
106-414, 114 Stat. 1800 (2000), which amended the Safety Act
and directed the Secretary of Transportation to promulgate a
regulation expanding the scope of the information that
3
manufacturers are required to submit to NHTSA. This
additional information, which the statute refers to as “early
warning reporting” (EWR) data, is information that may assist
the agency in identifying safety defects in motor vehicles or
motor vehicle equipment. See 49 U.S.C. § 30166(m)(3)(B).
NHTSA published the regulation called for by the TREAD Act
on July 10, 2002. Reporting of Information and Documents
About Potential Defects, 67 Fed. Reg. 45,822-01 (July 10, 2002)
(relevant provisions codified at 49 C.F.R. §§ 579.5, 579.21-.26).
For tire manufacturers, the rule requires the reporting of, inter
alia, information regarding property damage claims, warranty
adjustments, and claims that a defect in the manufacturer’s tires
caused injury or death. 49 C.F.R. § 579.26.
In addition to increasing the flow of industry information to
the agency, the TREAD Act contains a provision regarding
disclosure of EWR data. Section 30166(m)(4)(C), which is
entitled “Disclosure,” provides that “[n]one of the information
collected pursuant to the final [EWR rule] shall be disclosed
pursuant to section 30167(b) unless the Secretary determines”
that disclosure will assist in carrying out specified provisions of
the Safety Act. 49 U.S.C. § 30166(m)(4)(C) (emphasis added).
Section 30167(b), referenced in the quoted provision, is a
section of the Safety Act that requires the Secretary to “disclose
information obtained under this chapter related to a defect or
noncompliance that the Secretary decides will assist in carrying
out” the same provisions of the Safety Act specified in §
30166(m)(4)(c). Section 30167(b) expressly states that its
disclosure requirements are “in addition to the requirements of
section 552 of title 5,” which is the Freedom of Information Act
(FOIA). 49 U.S.C. § 30167(b).
In April 2002, NHTSA initiated a rulemaking to address the
treatment of EWR data under the agency’s Confidential
Business Information (CBI) Rule, 49 C.F.R. pt. 512.
4
Confidential Business Information, 67 Fed. Reg. 21,198 (Apr.
30, 2002). That rule sets forth the procedures and standards by
which NHTSA considers claims that information submitted to
the agency is entitled to confidential treatment under FOIA. See
49 C.F.R. § 512.1.
On July 28, 2003, NHTSA issued a Final CBI Rule, which
accepted the position of the Rubber Manufacturers Association
(RMA) that certain categories of EWR data, the disclosure of
which would cause substantial competitive harm, are protected
from public disclosure under FOIA Exemption 4. See
Confidential Business Information, 68 Fed. Reg. 44,209, 44,211
(July 28, 2003) (Final CBI Rule).1 Exemption 4 provides that
FOIA’s disclosure requirements do not apply to matters that are
“trade secrets and commercial or financial information obtained
from a person and privileged or confidential.” 5 U.S.C. §
552(b)(4).
The Final CBI Rule rejected, however, RMA’s suggestion
that § 30166(m)(4)(C) is a withholding statute that renders all
EWR data protected from disclosure under FOIA Exemption 3
“unless the Secretary determines the disclosure of such
information will assist in carrying out” the specified provisions
of the Safety Act. Final CBI Rule, 68 Fed. Reg. at 44,217-18
(quoting 49 U.S.C. § 30166(m)(4)(C)). Exemption 3 provides
that FOIA’s disclosure requirements do not apply to matters that
are “specifically exempted from disclosure by statute[,] . . .
provided that such statute (A) requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
1
The protected categories include most information about
production numbers, warranty claims, field reports, and consumer
complaints. See Final CBI Rule, 68 Fed. Reg. at 44,221-25.
5
withholding or refers to particular types of matters to be
withheld.” 5 U.S.C. § 552(b)(3).
Public Citizen and RMA each petitioned for
reconsideration. The former challenged the agency’s conclusion
that entire categories of EWR data are protected from disclosure
under Exemption 4; the latter challenged the decision not to treat
all EWR data as protected from disclosure pursuant to
Exemption 3. On April 21, 2004, NHTSA denied both petitions.
See Confidential Business Information, 69 Fed. Reg. 21,409-01,
21,410-11, 21,419-23 (Apr. 21, 2004).
Public Citizen then filed suit in district court alleging that
NHTSA’s promulgation of the Final CBI Rule violated the
notice-and-comment requirements of the Administrative
Procedure Act (APA), 5 U.S.C. § 553, and challenging the
agency’s decision that FOIA Exemption 4 applies to entire
categories of EWR data. See Public Citizen, Inc. v. Mineta, 427
F. Supp. 2d 7 (D.D.C. 2006). RMA intervened to defend the
Exemption 4 decision, and it filed a cross-claim against the
Secretary of Transportation challenging the decision that
§ 30166(m)(4)(C) is not an Exemption 3 withholding statute.
On March 31, 2006, the district court held that NHTSA was
authorized to make categorical determinations regarding the
confidentiality of EWR data. Id. at 13-14. But it also found that
the agency had failed to provide adequate notice and opportunity
to comment as required by the APA. Id. at 16-17. The court
remanded the rule to the agency without reaching the parties’
other claims, including RMA’s cross-claim that
§ 30166(m)(4)(C) is a withholding statute for purposes of FOIA
Exemption 3. Id. at 17. RMA then filed a motion to alter or
amend the judgment, asking the court to address its Exemption
3 cross-claim.
6
On July 31, 2006, the district court granted RMA’s motion
to alter or amend, but ruled against RMA on the merits. The
court upheld NHTSA’s decision that § 30166(m)(4)(C) is not an
Exemption 3 statute. It did so on the ground that the section
neither “‘establishes particular criteria for withholding’” nor
“‘refers to particular types of matters to be withheld.’” Public
Citizen, Inc. v. Mineta, 444 F. Supp. 2d 12, 16-18 (D.D.C. 2006)
(quoting 5 U.S.C. § 552(b)(3)). Determining that there was “no
just reason for delay,” the court entered a final judgment on
RMA’s cross-claim pursuant to Federal Rule of Civil Procedure
54(b). RMA now appeals the district court’s holding that
§ 30166(m)(4)(C) is not an Exemption 3 withholding statute.
That is the only issue before this court.
II
With specific exceptions, the Freedom of Information Act
requires Executive Branch agencies to make their records
available “to any person” upon request. 5 U.S.C.
§ 552(a)(3)(A). FOIA was intended “to provide for open
disclosure of public information,” Baldrige v. Shapiro, 455 U.S.
345, 352 (1982), and it has long been understood to create a
“strong presumption in favor of disclosure,” United States Dep’t
of State v. Ray, 502 U.S. 164, 173 (1991). “Although Congress
enumerated nine exemptions from the disclosure requirement,
‘these limited exemptions do not obscure the basic policy that
disclosure, not secrecy, is the dominant objective of the Act.’”
National Ass’n of Home Builders v. Norton, 309 F.3d 26, 32
(D.C. Cir. 2002) (quoting Department of the Air Force v. Rose,
425 U.S. 352, 361 (1976)). Accordingly, FOIA’s exemptions
are to be narrowly construed. Id.
As noted in Part I, FOIA Exemption 3 permits the
government to withhold information “specifically exempted
from disclosure by statute[,] . . . provided that such statute (A)
7
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). A statute need
only satisfy one of these disjunctive conditions to qualify as an
Exemption 3 statute. See Association of Retired R.R. Workers
v. United States R.R. Ret. Bd., 830 F.2d 331, 334 (D.C. Cir.
1987). Before a court inquires into whether any of the
conditions are met, however, it must first determine whether the
statute is a withholding statute at all by deciding whether it
satisfies “the threshold requirement that it specifically exempt
matters from disclosure.” Reporters Comm. for Freedom of the
Press v. United States Dep’t of Justice, 816 F.2d 730, 734 (D.C.
Cir. 1987) (emphasis added), rev’d on other grounds, 489 U.S.
749 (1989).
The question on appeal is whether § 30166(m)(4)(C) is a
withholding statute for purposes of FOIA Exemption 3.
According to the Secretary, “[j]udicial deference is neither
sought nor owed to the agency’s interpretation of the TREAD
Act’s disclosure provision as ineligible for treatment under
FOIA Exemption 3,” and this court should therefore make its
own determination de novo. Secretary Br. 12 (citing, inter alia,
Reporters Comm., 816 F.2d at 734). RMA and Public Citizen
concur. See RMA Br. 20; Public Citizen Br. 27. In Part III, we
explain our determination that § 30166(m)(4)(C) does not come
within the purview of Exemption 3. In Part IV, we consider
RMA’s arguments to the contrary.
III
Section 30166(m)(4)(C) states:
None of the information collected pursuant to the final
[EWR rule] shall be disclosed pursuant to section
8
30167(b) unless the Secretary determines the
disclosure of such information will assist in carrying
out sections 30117(b) and 30118 through 30121.
49 U.S.C. § 30166(m)(4)(C). According to RMA, this means
that no EWR data may be disclosed -- under any statute,
including FOIA -- unless the Secretary makes the specified
determination with respect to §§ 30117(b) and 30118-21. Those
sections set forth rules relating to defect and noncompliance
notifications and remedies. RMA contends that, because “the
EWR data submitted pursuant to the TREAD Act is ‘not
necessarily indicative of any problem needing investigation[,]’
. . . . the Secretary could make the specified findings about only
a small subset of the EWR data in NHTSA’s possession.” RMA
Br. 22 (quoting Final CBI Rule, 68 Fed. Reg. at 44,218). Hence,
“the vast bulk of EWR data would not qualify for disclosure
because it is unrelated to a defect or noncompliance
investigation.” Id.
If § 30166(m)(4)(C) actually said that no EWR data may be
disclosed without the specified determination, it might well be
an Exemption 3 withholding statute. See Consumer Prod. Safety
Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 121-22 (1980).
But § 30166(m)(4)(C) does not say that. Instead, it says that no
EWR data may be disclosed “pursuant to section 30167(b)”
without that determination. 49 U.S.C. § 30166(m)(4)(C). Thus,
in order to decide whether § 30166(m)(4)(C) is an Exemption 3
statute, it is necessary to examine § 30167(b).
Section 30167(b) states in full:
Subject to subsection (a) of this section, the Secretary
shall disclose information obtained under this chapter
related to a defect or noncompliance that the Secretary
decides will assist in carrying out sections 30117(b)
9
and 30118-30121 of this title or that is required to be
disclosed under section 30118(a) of this title. A
requirement to disclose information under this
subsection is in addition to the requirements of section
552 of title 5 [FOIA].
Id. § 30167(b).2 Section 30167(b) thus creates a mandatory
disclosure requirement: it obligates the Secretary to disclose
information obtained under the Safety Act when doing so will
assist in carrying out §§ 30117(b) and 30118-21, the same
sections cited in § 30166(m)(4)(C). It is a requirement that
applies whether or not any member of the public has requested
the information. And, as the section states, it is a “requirement
to disclose information [that is] in addition to the requirements
of” FOIA.
It is therefore plain that § 30166(m)(4)(C) does not mean
that no EWR data may be disclosed without the specified
Secretarial determination. Rather, it provides that EWR data is
not subject to the Secretary’s mandatory obligation to disclose
information pursuant to § 30167(b) -- whether requested or not
-- unless the Secretary makes that determination. Accordingly,
§ 30166(m)(4)(C) cannot be a FOIA Exemption 3 statute
because it does not “specifically exempt[]” certain matters
“from disclosure.” 5 U.S.C. § 552(b)(3). At most, it
specifically exempts EWR data from disclosure under
§ 30167(b), a section that expressly states that its disclosure
requirement is “in addition to the requirements of” FOIA.
2
“Subsection (a),” referenced in § 30167(b), limits the way in
which confidential information referred to in 18 U.S.C. § 1905 (the
Trade Secrets Act) may be disclosed. See 49 U.S.C. § 30167(a). The
parties do not argue that this subsection informs the meaning of
§ 30167(b) or § 30166(m)(4)(C) as relevant here. See Oral Arg.
Recording at 43:20-25; see also id. at 12:27-13:02, 26:08-55.
10
The fact that § 30166(m)(4)(C) simply limits disclosures
that § 30167(b) requires the Secretary to make sua sponte
distinguishes that section from the statute the Supreme Court
found to be an Exemption 3 withholding statute in GTE
Sylvania, 447 U.S. 102. In that case, the Court considered the
Consumer Product Safety Commission’s contention that the
disclosure prohibitions of § 6(b)(1) of the Consumer Product
Safety Act (CPSA), 15 U.S.C. § 2055(b)(1), are “limited to
disclosures initiated by the Commission” and do not apply to
disclosures requested under FOIA. Id. at 108. After examining
the language of the Act, the Court rejected that contention
because § 6(b)(1) “by its terms applies to the ‘public disclosure
of any information’ obtained by the Commission pursuant to its
authority under the CPSA, and to any information ‘to be
disclosed to the public in connection therewith.’” Id. (emphasis
in original) (quoting 15 U.S.C. § 2055(b)(1)).
Unlike § 6(b)(1) of the CPSA, § 30166(m)(4)(C) does not
state that it applies to “public disclosure of any information,” but
instead states that it applies to “disclos[ure] pursuant to section
30167(b).” It therefore cannot be read to limit the agency’s
obligations to disclose EWR data under FOIA -- especially
given the FOIA savings provision at the end of the latter section.
Because § 30166(m)(4)(C) does not meet the threshold criterion
for qualification as an Exemption 3 statute -- i.e., that it
“specifically exempt[]” EWR data from disclosure -- we do not
need to consider whether the statute meets the additional
conditions of 5 U.S.C. § 552(b)(3)(A) or (B).
IV
RMA offers three reasons why the reading of
§ 30166(m)(4)(C) set forth above -- that the section only applies
to disclosures pursuant to § 30167(b) -- cannot be correct. We
address those arguments below.
11
A
RMA first contends that this reading of § 30166(m)(4)(C)
violates the canon of statutory construction that instructs courts
to give effect to all statutory language when it is reasonable to
do so. Before addressing this contention, we note the Supreme
Court’s frequent reminder that
canons of construction are no more than rules of thumb
that help courts determine the meaning of legislation,
and in interpreting a statute a court should always turn
first to one, cardinal canon before all others. We have
stated time and again that courts must presume that a
legislature says in a statute what it means and means in
a statute what it says there. When the words of a
statute are unambiguous, then, this first canon is also
the last: judicial inquiry is complete.
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992) (internal quotation marks omitted) (citing, inter alia,
United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241-42
(1989), and Rubin v. United States, 449 U.S. 424, 430 (1981)).
As we have noted, the words of § 30166(m)(4)(C) are
unambiguous: it applies, as it says it does, to disclosures made
“pursuant to section 30167(b).” Under these circumstances,
“‘we have no need to employ, nor any legitimate purpose in
employing, canons of construction designed to reconcile
confusing language.’” Atkinson v. Inter-American Dev. Bank,
156 F.3d 1335, 1341 (D.C. Cir. 1998) (quoting United States v.
Espy, 145 F.3d 1369, 1371 (D.C. Cir. 1998)). In any event, we
conclude that RMA’s canon-of-construction argument fails on
its own terms.
RMA argues that a change in statutory language must “‘be
read, if possible, to have some effect,’” RMA Br. 30 (emphasis
12
added by RMA) (quoting American Nat’l Red Cross v. S.G., 505
U.S. 247, 263 (1992)), and that § 30166(m)(4)(C) would have
no independent effect if all it did were limit disclosures pursuant
to § 30167(b). Section 30167(b) itself requires disclosure of all
defect and noncompliance “information obtained under this
chapter” -- which after the TREAD Act amendment includes
EWR data -- that the Secretary determines will assist in carrying
out §§ 30117(b) and 30118-21. RMA contends that, because
§ 30166(m)(4)(C) states that EWR data may not be disclosed
pursuant to § 30167(b) unless the Secretary makes that same
determination, it limits only the same disclosures that
§ 30167(b) itself limits. Hence, if § 30166(m)(4)(C) only affects
disclosures under § 30167(b), it has no independent effect.
For § 30166(m)(4)(C) to have an independent effect, RMA
continues, it must limit disclosures made pursuant to any statute
-- including FOIA -- and not simply those made pursuant to
§ 30167(b). Thus, RMA maintains, § 30166(m)(4)(C) must be
read as requiring that “disclosure of EWR data is to be made
‘pursuant to’ § 30167(b), or not at all.” RMA Reply Br. 18
(emphasis added); see RMA Br. 36 (same). That is, “EWR data
may be released only pursuant to” § 30167(b). RMA Br. 35
(emphasis added).
The principal problem with RMA’s reading is that the
italicized words do not appear in the statute. As the Supreme
Court has cautioned, “our preference for avoiding surplusage
constructions is not absolute.” Lamie v. United States Tr., 540
U.S. 526, 536 (2004). While a court should, “‘if possible,’ . . .
construe a statute so as to give effect to ‘every clause and word,’
. . . . [n]o canon of construction justifies construing the actual
statutory language beyond what the terms can reasonably bear.”
Amoco Prod. Co. v. Watson, 410 F.3d 722, 733-34 (D.C. Cir.
2005) (quoting United States v. Menasche, 348 U.S. 528, 538-39
(1955)). RMA asks us to do just that, by adding words that are
13
not in the statute that the legislature enacted. See United States
v. Monsanto, 491 U.S. 600, 611 (1989) (“[I]nterpretative
canon[s are] not a license for the judiciary to rewrite language
enacted by the legislature.” (internal quotation marks omitted)).
Congress knows well how to say that disclosures may be made
only under specified provisions or circumstances,3 but it did not
do so here. As then-Judge Roberts said with respect to a similar
argument in the Amoco case, any “inference to be drawn from
[the canon] does not dissuade us from the more natural reading
of the express language” of the statute. 410 F.3d at 733.
Moreover, RMA’s construction runs afoul of its own canon.
As the Secretary correctly notes, “RMA’s argument reads the
pivotal clause ‘pursuant to section 30167(b)’ out of section
30166(m)(4)(C).” Secretary Br. 20. Indeed, deleting the clause
from § 30166(m)(4)(C) altogether would create precisely the
meaning upon which RMA insists -- i.e., that “[n]one of the
information collected pursuant to the final [EWR rule] shall be
disclosed pursuant to section 30167(b) unless the Secretary”
makes the specified determination. But such a deletion would
directly contradict a canon that counsels us to give effect to
3
See 49 U.S.C. § 30117(b)(1) (mandating that NHTSA’s
regulations “provide reasonable assurance that a customer list . . . will
be made available to a person . . . only when necessary to carry out
this subsection and [other listed sections]” (emphasis added)); see also
5 U.S.C. § 9101(d) (“Criminal history record information received
under this section shall be disclosed or used only for the purposes set
forth in paragraph (b)(1) or for national security or criminal justice
purposes authorized by law . . . .” (emphasis added)); 10 U.S.C.
§ 616(e) (“The recommendations of a selection board may be
disclosed only in accordance with regulations prescribed by the
Secretary of Defense.” (emphasis added)); 15 U.S.C. § 78u(h)(9)(B)
(“Financial records or information transferred by the Commission . .
. may be disclosed or used only in an administrative, civil or criminal
action or investigation . . . .” (emphasis added)).
14
“every clause and word.” Menasche, 348 U.S. at 538-39; see
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
We also doubt the premise of RMA’s argument -- that
reading § 30166(m)(4)(C) to apply only to disclosures pursuant
to § 30167(b) denies the section any purpose. Although we
cannot know for certain what purpose Congress had in mind, at
least two are possible.
First, the section may serve to fill a logical gap in
§ 30167(b). The latter states that the Secretary, acting on her
own and without a FOIA request, shall disclose information if
she determines that it will assist in carrying out the other
specified sections. But § 30167(b) does not necessarily compel
the inverse proposition: that the Secretary (again, acting on her
own and without a FOIA request) shall not disclose information
unless she makes such a determination. As we have noted,
“[t]he legal maxim expressio unius est exclusio alterius (‘the
mention of one thing implies the exclusion of another’) is not
always correct.” In re Sealed Case, 181 F.3d 128, 132 (D.C.
Cir. 1999). Because it is thus unclear from the language of
§ 30167(b) alone whether the Secretary may, in the absence of
a FOIA request, disclose information without making the
specified determination, § 30166(m)(4)(C) serves to fill that
lacuna for EWR data by making clear that such data may not be
disclosed unless the Secretary makes that determination. This
reconciles the affirmative language of § 30166(m)(4)(C) and the
negative language of § 30167(b), while giving effect to both.
Second, § 30166(m)(4)(C) may also serve to provide useful
clarification. Manufacturers did not have to report EWR data
under the Safety Act of 1966, which included § 30167(b). It
was not until 34 years later, with the passage of the TREAD Act,
that manufacturers were required to report EWR data to
NHTSA. It may well be, as RMA maintains, that “EWR data
15
would still have been subject to disclosure under § 30167(b)
pursuant to Secretarial findings” even “if § 30166(m)(4)(C) had
been omitted entirely from the TREAD Act.” RMA Reply Br.
14. But it is also true, as NHTSA suggests, that
§ 30166(m)(4)(C) makes clear that this is so. Oral Arg.
Recording at 39:21-49. In addition, as the district court found,
§ 30166(m)(4)(C) “reemphasizes, and clarifies, that if any of the
EWR data that relates to defects or noncompliance is going to be
released in accordance with Section 30167(b), the Secretary
must first determine that the disclosure of such information will
assist in carrying out other sections” of the statute. Public
Citizen, 444 F. Supp. 2d at 18. As the Supreme Court has
recognized, a provision that may at first glance appear to be
textual surplusage, may in fact “perform[] a significant function
simply by clarifying.” United States v. Atlantic Research Corp.,
127 S. Ct. 2331, 2337 (2007). That a provision was intended to
serve such a function may be more likely when it was enacted
many years after the provision it is accused of duplicating. Cf.
Agredano v. Mutual of Omaha Cos., 75 F.3d 541, 544 (9th Cir.
1996). It is certainly not unreasonable to believe that Congress
added § 30166(m)(4)(C) to clarify that § 30167(b) applies to the
new categories of reportable data that the TREAD Act created.
Given the explicitness of § 30166(m)(4)(C)’s language, the
“first canon” of statutory construction -- “that courts must
presume that a legislature says in a statute what it means and
means in a statute what it says” -- is also the last canon that we
need to consult in this case. Connecticut Nat’l Bank, 503 U.S.
at 253-54 (internal quotation marks omitted). Even so,
consultation of the canon proffered by RMA does not yield a
different result.
16
B
RMA also contends that the legislative history of the
TREAD Act requires us to interpret § 30166(m)(4)(C) as an
Exemption 3 withholding statute that limits disclosures under
FOIA. But as with canons of construction, when a statute’s
“language is plain on its face, courts do not ordinarily resort to
legislative history.” Saadeh v. Farouki, 107 F.3d 52, 57 (D.C.
Cir. 1997); see Lamie, 540 U.S. at 534; Davis v. Michigan Dep’t
of Treasury, 489 U.S. 803, 808 n.3 (1989). And as we have
explained, § 30166(m)(4)(C)’s language is quite plain.
Moreover, legislative history is a particularly weak reed on
which to rest in this context, as this court has long disfavored the
use of legislative history to determine whether a statute qualifies
as a withholding statute under Exemption 3. See Norton, 309
F.3d at 38; Reporters Comm., 816 F.2d at 735.4
Even if we were inclined to look to legislative history for
guidance in this case, there is little that is useful here. The only
legislative history to which RMA points is a brief colloquy
between Representatives Markey and Tauzin during a House
debate on the TREAD Act, see RMA Br. 25-26 (citing 146
Cong. Rec. H9629 (daily ed. Oct. 10, 2000)), and a request by
Senator McCain that the Representatives’ colloquy be included
in the Senate record, see Oral Arg. Recording at 14:53-15:17
(citing 146 Cong. Rec. S10,273 (daily ed. Oct. 11, 2000)). We
ordinarily do not give controlling weight to such colloquies. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 457 (2002) (“Floor
4
We acknowledge RMA’s point that on occasion the Supreme
Court has considered a statute’s legislative history to support its
textual conclusion that Congress intended to protect certain
information from disclosure under FOIA. See Baldrige, 455 U.S. at
355-58; GTE Sylvania, 447 U.S. at 111-16. But there is no text to
which such support may be attached in this case.
17
statements from two Senators cannot amend the clear and
unambiguous language of a statute. We see no reason to give
greater weight to the views of two Senators than to the collective
votes of both Houses, which are memorialized in the
unambiguous statutory text.”); see also Grand Canyon Air Tour
Coal. v. FAA, 154 F.3d 455, 467 (D.C. Cir. 1998); Chemical
Mfrs. Ass’n v. EPA, 919 F.2d 158, 164 n.10 (D.C. Cir. 1990).
Nor does this particular colloquy tell us much about these
three legislators’ views. The colloquy, which is set out in the
footnote, does not mention FOIA generally or Exemption 3
specifically.5 Thus, although the two House members agree that
§ 30166(m)(4)(C) provides that EWR information “shall be
treated as confidential unless the Secretary makes a finding that
its disclosure would assist in ensuring public safety,” 146 Cong.
5
[Mr. MARKEY.] To protect the confidentiality of this new
early stage information, the bill provides in Section 2(b) in the
subsection titled ‘disclosure’ that such information shall be
treated as confidential unless the Secretary makes a finding
that its disclosure would assist in ensuring public safety, but
with respect to information that NHTSA currently requires be
disclosed to the public it is my understanding of the
committee’s intention that we not provide manufacturers with
the ability to hide from public disclosure information which
under current law must be disclosed. Would the gentleman
from Louisiana (Mr. TAUZIN) agree that this special
disclosure provision for new early stage information is not
intended to protect from disclosure that [which] is currently
disclosed under existing law such as information about actual
defects or recalls?
...
[Mr. TAUZIN.] Mr. Speaker, the gentleman is correct.
146 Cong. Rec. H9629.
18
Rec. H9629, this does little more than repeat the statutory
language and does not resolve the question of whether such
confidential treatment is for the purpose of disclosure under
FOIA as well as § 30167(b). Moreover, the statement of
Senator McCain, to which RMA pointed during oral argument,
appears to undermine the reading RMA advocates. That
statement expresses the Senator’s “strong[] disagree[ment]” with
assertions “that the bill would inhibit the release of information
collected by Department of Transportation to the public,” and
asks that the Markey/Tauzin colloquy be included in the record
to “refute these assertions.” 146 Cong. Rec. S10,273.
C
Finally, RMA argues that failing to interpret
§ 30166(m)(4)(C) as a withholding statute will have negative
consequences. It states that, because the EWR data “includes
mere allegations of a design defect, even when a factfinder
would ultimately conclude that no defect existed,” the release of
such data “could cause the public to believe that fatalities were
caused by ‘defects’ in a particular manufacturer’s product at a
much higher rate than actually occurred.” RMA Br. 27. And it
avers that, “[i]n light of the very real probability that unfiltered
EWR data would cause public misunderstanding and confusion
with potentially adverse competitive effects for the
manufacturers providing the data,” it would be “sensible for
Congress to prevent the release of the data except in
circumstances where the Secretary uses her expertise to
determine that release of the data will further the goals of the
act.” Id. at 28-29 (emphasis omitted).
To the extent that this is an argument about legislative
intent, RMA points to neither legislative language nor history
indicating that § 30166(m)(4)(C) was meant to address such
concerns. To the extent that it is an argument about public
19
policy, it is addressed to the wrong audience. Although RMA’s
arguments are well and vigorously presented, only Congress has
the authority to provide the relief it seeks.
V
In sum, § 30166(m)(4)(C) does not meet the threshold
criteria for a FOIA Exemption 3 statute, because it does not
“specifically exempt[]” EWR data from disclosure. Rather, the
plain language of § 30166(m)(4)(C) makes clear that it applies
to disclosures “pursuant to section 30167(b),” and the latter
provision makes clear that such disclosures are “in addition to”
disclosures required by FOIA. This does not, of course, end the
FOIA analysis, as the question of whether certain categories of
EWR information are protected from disclosure under FOIA
Exemption 4 remains pending and is not before us. It does,
however, dispose of the only matter at issue on this appeal. As
to that issue, the judgment of the district court is
Affirmed.