Company Doe v. Tenenbaum (900 F. Supp. 2d 572, 2012)

REVISED MEMORANDUM OPINION

ALEXANDER WILLIAMS, JR., District Judge.

Plaintiff Company Doe initiates this action against the following Defendants: (1) Inez Tenenbaum, in her official capacity as Chairwoman of the Consumer Product Safety Commission; and (2) the Consumer Product Safety Commission. Plaintiff asserts four related claims under the Administrative Procedure Act (“APA”). Concerning its APA claims, Plaintiff contends that the Commission’s decision to publish a report implicating Plaintiffs product in [redacted] is arbitrary and capricious, an abuse of discretion, in excess of its statutory authority, and otherwise not in accordance with the law. See 5 U.S.C. § 706(2). Plaintiff also asserts a Fifth Amendment claim predicated on purported due process and takings violations. In addition to an exhaustive review of the record, the Court held a motions hearing on February 1, 2012. The Parties have fully briefed the outstanding motions and the Court deems any further hearings unnecessary. For the reasons articulated herein, the Court issues the ensuing rulings: (1) the Court GRANTS IN PART Plaintiffs Motion to Seal; (2) DENIES AS MOOT Plaintiffs Motion for Preliminary Injunction; (3) GRANTS, nunc pro tunc, Plaintiffs Motion for Oral Argument; (4) DENIES the Consumer Groups’ Motion to Unseal Filings; (5) DENIES the Commission’s Motion for Summary Judgment; and (6) GRANTS Plaintiffs Cross-Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

[redacted] Plaintiff manufactures a consumer product known as [redacted] Plaintiff describes [redacted] as [redacted] PL’s Mem. Supp. Mot. Prelim. Inj. 2, Doc. No. 9-1. The Court herein refers to [redacted] in general terms (e.g., [redacted]).

Defendant Inez Tenenbaum is Chairwoman of. the Consumer Product Safety Commission. Defendant Consumer Product Safety Commission is an independent federal regulatory agency responsible for enforcing the Consumer Product Safety Act, 15 U.S.C.A. §§ 2051 et seq. (West 2009). As Plaintiff has sued Defendant Tenenbaum in her official capacity, the Court refers to Tenenbaum and the Consumer Product Safety Commission collectively as “the Commission.”

In August 2008, Congress passed the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), Pub.L. No. 110-314, 122 Stat. 3016 (2008) (codified in scattered sections of 15 U.S.C.A.). According to its preamble, in passing the CPSIA, Congress sought to “establish consumer product safety standards and other safety requirements for children’s products and to reauthorize and modernize the Consumer Product Safety Commission.” CPSIA, 122 Stat. at 3016. Section 212 of the CPSIA establishes a consumer product safety database. 15 U.S.C.A. § 2055a (West 2009). Specifically, § 212 requires the Commission to “establish and maintain a database on the safety of consumer products, that is — (A) publicly available; (B) searchable; and (C) accessible through the Internet website of the Commission.” Id. § 2055a(a)(l). In relevant part, the database must include “[r]eports of harm relating to the use of consumer products ... that are received from ... local ... government agencies.” Id. § 2055a(b)(l) (emphasis added). The Commission launched the database on March 11, 2011. See SaferProducts.gov, CPSC.gov, http:// www.saferproducts.gov (last visited June 17, 2012).

The Parties’ dispute traces to the Commission’s planned publication of a report about the [redacted] On [redacted], an unidentified local government agency submitted an incident report to the Commission. AR000009-11. The report reads as follows:

[redacted]

AR000009.

On [redacted], Plaintiff argued in a letter that the report was “materially inaccurate” within the meaning of the CPSIA and demanded that the Commission refrain from publishing it. AR000030-33. Plaintiff so argued pursuant to CPSIA provisions empowering manufacturers to contest the publication of reports on the ground that they contain materially inaccurate information. See 15 U.S.C.A. § 2055(c) (West 2009). Plaintiff maintained that the report contained confusing and contradictory statements. For instance, the report states that [redacted] See AR000009.

In the following days, Plaintiff submitted medical evidence to the Commission to buttress its contention that the report was materially inaccurate, [redacted]

[redacted]

Id.

Additionally, [redacted] and presented his findings in a report to the Commission. AR000069-72. [redacted] Pl.’s Mem. Supp. Mot. Prelim. Inj. 9, Doc. No. 9-1. [redacted]

On [redacted], Dr. [redacted] reviewed the report of harm to determine whether it described a risk of harm related to [redacted] AR000046. Dr. [redacted] is an engineering psychologist for the Commission. Dr. [redacted] concluded that the report described [redacted] See id. Regarding the risk of harm the report purports to describe, Dr. [redacted] reasoned:

[redacted]

Id. Further attempting to associate the risk of harm to [redacted] Dr. [redacted] continued:

[redacted]

Id. In a declaration prepared after the commencement of the litigation, J. De Wane Ray, Assistant Executive Director of the Office of Hazard Identification and Reduction at the Commission, states that he agrees with Dr. [redacted]’s assessment. AR0000195.

On [redacted], the Commission notified Plaintiff that the information in the incident report that Plaintiff identified as materially inaccurate met the definition of materially inaccurate information in 16 C.F.R. § 1101.26 (2011). AR000078. In a bid to rid the report of the material inaccuracy, the Commission thus redacted it:

[redacted]

Id.

The day after, Plaintiff filed another material inaccuracy claim. AR00082-84. Plaintiff argued, inter alia, that the second report compounded the first report’s inaccuracy by suggesting a relationship between a [redacted] and the [redacted] To buttress its argument, Plaintiff highlighted

[redacted]

On [redacted] or thereabouts, the Commission notified Plaintiff that the information in the report’s second version was materially inaccurate. AR000090. For the second time, the Commission tried to purge the report of its material inaccuracy, producing a third iteration:

[redacted]

Id.

On the same day, Plaintiff lodged a Complaint in this Court. CompL, Doc. No. 1. Contemporaneously, Plaintiff filed a Motion for Leave to Seal Case and to Proceed Under a Pseudonym (“Motion to Seal”). PL’s Mot. Seal, Doc. No. 2. In its Motion to Seal, Plaintiff requests the Court to enter an order “requiring all pleadings, documents, and forms to be filed under seal” and “allowing it to proceed under the pseudonym Company Doe.” Id. at 1.

Plaintiffs Complaint seeks to enjoin the Commission from publishing the third incident report. Plaintiff impugns the third report as baseless and inflammatory and contended that its publication, besides being unlawful, would cause irreparable harm to its reputation and financial well-being.

The Complaint contains four counts. Count I is for abuse of discretion. That is, Plaintiff alleges that the Commission abused its discretion by deciding to publish the third report and, as a result, ran afoul of the Administrative Procedure Act (“APA”). See 5 U.S.C. § 706(2)(A). Count II avers that the Commission’s decision to publish the report constitutes arbitrary and capricious conduct in contravention of 5 U.S.C. § 706(2)(A). Count III, for its part, contends that the Commission’s actions exceeded its statutory authority in transgression of 5 U.S.C. § 706(2)(C). Lastly. Count IV asserts a two-prong Fifth Amendment claim. The first prong alleges a due process violation. The second prong posits a violation of the Takings Clause. In its prayer for relief, among other things, Plaintiff asks the Court to issue a preliminary injunction enjoining publication of the report.

Consistent with its prayer, on October 21, 2011, Plaintiff filed a Motion for Preliminary Injunctive Relief (“Motion for Preliminary Injunction”). See PL’s Mot. Prelim. Inj., Doc. No. 9. Plaintiff makes numerous arguments in its Motion for Preliminary Injunction, of which a triumvirate is salient: (1) the Commission’s publication of the report would amount to arbitrary and capricious conduct; (2) the Commission’s publication of the report would be an abuse of discretion; and (3) Plaintiff has otherwise satisfied the prerequisites for a preliminary injunction.

The Commission filed a Memorandum in Opposition to Plaintiffs Motion for Preliminary Injunction (“Opposition to Motion for Preliminary Injunction”) on November 4, 2011. Def.’s Mem. Opp’n PL’s Mot. Prelim. Inj., Doc. No. 16. The Commission allots substantial space in its Opposition to Motion for Preliminary Injunction to the argument that its construction of the CPSIA merits deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Moreover, in passing, the Commission intimates that its decision to publish the report is not “final agency action” under the APA.

On November 20.2011, Plaintiff filed an Unopposed Motion Requesting Oral Argument on Plaintiffs Motion for Preliminary Relief (“Motion for Oral Argument”). Mot. Oral Arg., Doc. No. 20. The Court scheduled an oral argument for February 1, 2012, on which date both Parties appeared and presented their positions before the Court. The Court grants this Motion nunc pro tunc. In the interest of clarity, the Court defers discussing the Parties’ oral argument until it has discussed other procedural aspects of the case.

Originally, Plaintiff filed the entire case under seal, including its Motion to Seal and accompanying memorandum in support. Consequently, the following consumer groups could not access those documents: Public Citizen, Consumer Federation of America, and Consumers Union (collectively “Consumer Groups”). Evidently, the Consumer Groups complained to the Clerk of the Court that Plaintiffs sealing of its Motion to Seal and accompanying memorandum in support violated Rule 105.11 of the Local Rules for the United States District Court for the District of Maryland. Concerning motions to seal, Local Rule 105.11 pertinently provides that “[t]he Court will not rule upon the motion until at least fourteen (14) days after it is entered on the public docket to permit the filing of objections by interested parties.” Local Rule 105.11 (D.Md.2011).

After lodging this informal complaint — ■ but, interestingly, before the public docket was unsealed' — the Consumer Groups filed an Objection Under Local Rule 105(11) to Plaintiffs Motion to Seal (“Objection to Motion to Seal” or “Objection”). Object. Mot. Seal, Doc. No. 14. The Consumer Groups object to Plaintiffs Motion to Seal on the basis that it is overbroad, contravenes Fourth Circuit precedent, and restricts the public’s access to information concerning the safety, or lack thereof, of consumer products. In terms of substance, many of the arguments that the Consumer Groups make in their Objection to Motion to Seal duplicate arguments that the Commission makes in its Opposition to Plaintiffs Motion to Seal. See Def.’s Opp’n Mot. Seal, Doc. No. 11.

On November 8, 2011, roughly a week after the Consumer Groups filed their Objection to Motion to Seal, the Parties filed a Joint Motion to Unseal Plaintiffs Motion to Seal (“Joint Motion to Unseal”), Doc. No. 18. Plaintiff explained therein that, although it “requested a seal of the entire case, it was not [its] intention to submit the motion to seal or memorandum in support under seal.” Joint Mot. Unseal 1, Doc. No. 18. Pursuant to the Parties’ agreement, the Court issued an Order toward the tail end of November granting their Joint Motion to Unseal. Doc. No. 21. As a result. Plaintiffs Motion to Seal and the accompanying memorandum in support — neither of which reveals sensitive information — appear on the public docket. Apparently, these are the only documents available on the public docket.

On December 6, 2011, the Consumer Groups filed a Motion to Unseal Filings Regarding Plaintiffs Motion to Seal (“Motion to Unseal Filings”). Mot. Unseal Filings Re. Mot. Seal, Doc. No. 22. In this short Motion, the Consumer Groups ask the Court to unseal memoranda and other documents related to Plaintiffs Motion to Seal (e.g., the Commission’s response in opposition to Plaintiffs Motion to Seal). The Consumer Groups did not offer much of a rationale for their request. See generally id.

In a curious twist, on December 16, 2011, the Commission filed a Motion to Dismiss. Def.’s Mot. Dismiss, Doc. No. 26. In its Motion to Dismiss, the Commission fleshes out the argument that it flirted with in its Opposition to Motion for Preliminary Injunction: that its decision to publish the report does not constitute final agency action under the APA. This grew into the Commission’s lead argument as the case progressed.

In a similarly strange turn, Plaintiff filed a Motion to Stay on January 6, 2012. Pl.’s Mot. Stay, Doc. No. 32. In its Motion to Stay, Plaintiff argues that evidence that the Commission disclosed to it during the pendency of the case irrefutably establishes that [redacted] It turns out that the Commission commenced an investigation into [redacted] around the time it decided to publish the third incident report. At that time, Plaintiff apparently lacked awareness that the Commission had undertaken said investigation. In the course of its investigation, the Commission compiled an epidemiologic investigation report that includes records that the [redacted] produced in connection with [redacted] See AR000119 (first page of report). Plaintiff posits that these records positively prove that [redacted] To support this conclusion, Plaintiff points to [redacted]

[redacted]

AR000131.

Likewise, Plaintiff adduced a second declaration from [redacted] AR000240-42. In his second declaration, [redacted] summarizes the content of the [redacted] records. He writes:

[redacted]

[redacted]

Based on these developments, Plaintiff filed a fourth material inaccuracy claim on January 5, 2012. AR000198-203. The gravamen of the fourth material inaccuracy claim is that the epidemiologic report categorically confutes the notion that [redacted]

On January 11, 2012, Dr. [redacted] completed a second “risk of harm” assessment in light of Plaintiffs most recent material inaccuracy claim. AR000244. In his assessment, Dr. [redacted] states that he agrees [redacted] that the [redacted] “was the injury mechanism.” Id. Dr. [redacted] adds, however, that he “cannot agree that this means the [redacted] was not associated [redacted]” Id. He reasons:

[redacted]

Id. In a supplemental declaration, Mr. Ray states that he agrees with Dr. [redacted]’s determination that the report of harm relates to [redacted] AR000280-81. Mr. Ray stresses, however, that he disagrees with Dr. [redacted]’s conclusion that the [redacted] AR000281. Mr. Ray fails to explain why he disagrees with only this aspect of Dr. [redacted]’s analysis.

One week later, the Commission partially approved Plaintiffs fourth material inaccuracy claim. AR000255. In its approval email, the Commission wrote that “[t]o correct this material inaccuracy, the CPSC is redacting from the incident description, product description, and brand the word [redacted] Otherwise, the Report meets the criteria for publication....” As a result, the report’s fourth variant reads:

[redacted]

Id.

On [redacted], Plaintiff filed a fifth material inaccuracy claim. AR000264-68. Paralleling its previous submissions, Plaintiff insisted that the report’s fourth variant illogically linked [redacted]

Two days later, the Commission rejected Plaintiffs fifth material inaccuracy claim. AR000276. Unlike its previous four responses, the Commission purported to support its fifth ruling with a rationale: “The identified information was determined not to be materially inaccurate because you failed to meet your burden of proof that the information in the Report is materially inaccurate.” AR000276. Plaintiff terms this rationale as a “tautology.”

On January 27, 2012, Plaintiff moved to withdraw its Motion to Stay and simultaneously filed an Unopposed Motion to File an Amended Complaint (“Motion to File Amended Complaint”). Mot. File Am. Compl., Doc. No. 36. In this Motion, Plaintiff asserted that staying the ease served no point seeing that the Commission had shown no sign of backing down from publishing the report. Instead, Plaintiff moved to amend its Complaint to include information concerning the epidemiologic report and the events that transpired after its revelation. The Court summarily granted this Motion. See Doc. No. 37.

Although the Amended Complaint’s factual allegations differ somewhat from the Complaint’s, the former’s claims duplicate the latter’s. In brief, the Amended Complaint asserts four related APA claims and a tag-along Fifth Amendment claim founded on alleged due process and takings violations.

On the same day it granted the Motion, the Court heard oral arguments. Much of the oral argument treaded territory that the Parties had already covered in their previous filings. The Court need not discuss what little new ground the Parties covered as they fully discuss these issues in subsequently filed memoranda.

On February 16, 2012, the Court conducted a telephonic status conference with the Parties. During this conference, counsel for the Commission expressed his desire to file a motion to dismiss or, alternatively, for summary judgment vis-a-vis Plaintiffs Amended Complaint. The Commission further stated that it had yet to compile a complete administrative record, but that it would have such a record in place by way of filing said motion. See Oral Arg. Tr. 50:10-24, Doc. No. 44 (Commission’s concession that, as of the time of oral argument, an administrative record had not “been gathered yet”). Although Plaintiff suggested that the Court should rule on the outstanding Motion for Preliminary Injunction, the Court decided to permit the Commission to file a motion for summary judgment in respect of Plaintiffs Amended Complaint, with the understanding that Plaintiff would file a cross-motion for summary judgment.

Pursuant to this decision, the Parties conferred and entered a Joint Stipulation as to Briefing Schedule (“Joint Stipulation”). Joint Stip., Doc. No. 43. Observing this schedule, the Commission filed a Motion to Dismiss Plaintiffs Amended Complaint or, in the Alternative, for Summary Judgment (“Motion for Summary Judgment”). See Def.’s Mem. Supp. Mot. Summ. J., Doc. No. 41-1. The Commission’s Motion for Summary Judgment is a lengthy document whose arguments, for the most part, mirror those made in its original Motion to Dismiss. Responsively, Plaintiff filed a Cross-Motion for Summary Judgment on March 7, 2012. See Pl.’s Mem. Supp. Cross-Mot. Summ. J., Doc. No. 46. Plaintiffs Cross-Motion for Summary Judgment similarly rehashes arguments that Plaintiff has made in previous memoranda, incorporating many of them by reference. The Parties have completed briefing on these Motions and the case is ripe for resolution.

II. STANDARD OF REVIEW

A. APA

Section 706(2) of the APA empowers courts to “hold unlawful and set aside” agency action that courts determine to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Courts’ scope of review under this standard is narrow. Judulang v. Holder, — U.S. -, 132 S.Ct. 476, 483, 181 L.Ed.2d 449 (2011) (citing Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). It is well-settled that “a court is not to substitute its judgment for that of the agency.” Id. (quoting State Farm, 463 U.S. at 43, 103 S.Ct. 2856).

Nevertheless, “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decision making.” Id. at 483-84. Therefore, courts must satisfy themselves that the agency has examined “the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (citation and internal quotation marks omitted). In reviewing the agency’s explanation, courts must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Id. (citations and internal quotation marks omitted).

The APA typically limits arbitrary- and-capricious review to the “full administrative record.” See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also 5 U.S.C. § 706 (“[T]he court shall review the whole record or those parts of it cited by a party....”). In other words, “[t]he reviewing court must apply the ‘appropriate APA standard of review ... to the agency decision based on the record the agency presents to the reviewing court.’ ” Dow AgroSciences LLC v. Nat. Marine Fisheries Serv., 821 F.Supp.2d 792, 798 (D.Md.2011) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-4, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). Therefore, “[bjecause the Court’s review is confined to the administrative record, ‘no de novo proceeding may be held.’ ” Id. (quoting United States v. Carlo Bianchi & Co., 373 U.S. 709, 715, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963)). Nonetheless, “if an agency has not provided an explanation for its action sufficient to allow effective judicial review, the Court may ‘obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as may prove necessary.’ ” Id. (quoting Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973)); see also, e.g., Am. Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C.Cir.2008) (internal quotation marks omitted) (citing Hecht, 82 F.3d at 1095) (holding that supplementation of administrative record is appropriate where “the district court need[s] to supplement the record with background information in order to determine whether the agency considered all of the relevant factors”); Asarco, Inc. v. U.S. EPA, 616 F.2d 1153, 1160 (9th Cir.1980) (holding that district courts may go outside the administrative record to ascertain “whether the agency considered all the relevant factors or fully explicated its course of conduct or grounds of decision”).

B. Motion to Dismiss Under Rule 12(b)(1)

To determine whether an agency’s action receives judicial review under the APA’s general review provisions, the contested action must qualify as final agency action. See Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. EPA, 313 F.3d 852, 857 (4th Cir.2002). In other words, courts lack subject matter jurisdiction to resolve claims that plaintiffs assert under the APA’s general review provisions where the agency action on which they base such claims lacks finality. See id.

“There are two critically different ways in which to present a motion to dismiss for lack of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). “First, it may be contended that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Id. Where the defendant contends that the complaint fails to allege facts sufficient to establish subject matter jurisdiction, “all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. , “Second, it may be contended that the jurisdictional allegations of the complaint [are] not true.” Id. In such cases, “the court is free to consider exhibits outside the pleadings to resolve factual disputes concerning jurisdiction.” Zander v. United States, 843 F.Supp.2d 598, 603 (D.Md.2012) (internal quotation marks omitted) (citing Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (2002)).

C. Motion to Dismiss Under Rule 12(b)(6)

The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiffs complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). In two recent cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Twombly, 550 U.S at 556 n. 3, 127 S.Ct. 1955 (quoting Fed.R.Civ.P. 8(a)(2)). This showing must consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

In deciding a motion to dismiss, the court should first review the complaint to determine which pleadings are entitled to the assumption of truth. See Iqbal, 129 S.Ct. at 1949-50. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing, the court must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.1999). The Court need not, however, accept unsupported legal allegations, Revene v. Charles County Commissioners, 882 F.2d 870, 873 (4th Cir.1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.1979).

D. Summary Judgment

Summary judgment is appropriate only “if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must “draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded to particular evidence.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). To defeat a motion for summary judgment, the nonmoving party must come forward with affidavits or similar evidence to show that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A disputed fact presents a genuine issue “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Material disputes are those that “might affect the outcome of the suit under the governing law.” Id.

Although the Court should believe the evidence of the nonmoving party and draw all justifiable inferences in his or her favor, the nonmoving party cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). Further, if a party “fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2). Finally, hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro Prof'l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir.1995).

III. LEGAL ANALYSIS

A. Whether the Commission’s Decision to Publish the Report Violates the APA

Plaintiffs core argument is that the Commission’s decision to publish the report constitutes both arbitrary and capricious conduct and an abuse of discretion under the APA. Plaintiff buttresses its basic position with a battery of discrete arguments. Out of this diffusion of dialectics, two suppositions take center stage. One, Plaintiff maintains that publishing the report would violate the plain meaning of both the CPSIA and the Commission’s concomitant regulations. Specifically, Plaintiff avers that publication of the report would run counter to statutory and regulatory requirements that reports of harm “relate to” the use of consumer products. Two, Plaintiff posits that the report’s publication would constitute an abuse of discretion. Both of these arguments carry the day and dispose of the question whether publishing the report violates the APA. Additionally, Plaintiff insists that publication of the report would violate the CPSIA’s prescription against materially inaccurate information. This argument is meritorious as well and serves as an independent basis on which to enjoin publication of the report.

This ease calls on the Court to decide whether to allow the Commission to publish the contested report on the publicly available database whose creation the CPSIA mandates. To recapitulate, the CPSIA requires the Commission to “establish and maintain a database on the safety of consumer products, that is — (A) publicly available; (B) searchable; and (C) accessible through the Internet website of the Commission.” 15 U.S.C.A. § 2055a(a)(l), (A)-(C) (West 2009). The database must include “[r]eports of harm relating to the use of consumer products.” Id. § 2055a(b)(l)(A) (emphasis added). The CPSIA also requires the Commission to establish minimum requirements concerning the content of the reports it publishes on the database. Id. § 2055a(b)(2). One such requirement includes “a description of the harm relating to the use of the consumer product.” Id. § 2055a(b)(2)(B)(iii) (emphasis added).

The CPSIA authorizes the Commission to issue regulations necessary for its implementation. CPSIA § 3, 122 Stat. at 3017. Pursuantly, the Commission issued a final rule establishing a “Publicly Available Consumer Product Safety Information Database” on December 9, 2010. See Publicly Available Consumer Product Safety Information Database, 16 C.F.R. § 1102.2 et seq. (2011). The implementing regulations define the “reports of harm” whose publication the CPSIA mandates in a manner that mimics the enabling statutory provision. Compare 15 U.S.C.A. § 2055a(b)(l)(A) (West 2009) (emphasis added) (requiring the database to include “[rjeports of harm relating to the use of consumer products”), with 16 C.F.R. § 1102.6(b)(8) (2011) (emphasis added) (defining “report of harm” as “any information ... regarding [harm] ... relating to the use of a consumer product”).

The Commission’s regulations also specify the minimum content of reports of harm. 16 C.F.R. § 1102.10(d) (2011). Implementing CPSIA § 2055a(b)(2), the report of harm must include a description of the harm. Id. § 1102.10(d)(3). Echoing the CPSIA, this regulation dictates that the harm the report describes must be “related to use of the consumer product.” Id.

Thus, the crux of the matter is whether [redacted] that the incident report describes relates to [redacted] This inquiry turns on the meaning of the phrase “relating to.” It is axiomatic that, when construing a statute, courts must start with the statute’s plain language. See e.g., Landreth Timber Co. v. Landreth, 471 U.S. 681, 685, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985) (citations omitted). “A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (quoting Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975)). Here, neither the CPSIA nor the concomitant regulations expressly defines “relating to.” Therefore, as a starting point in the analysis, the Court analyzes the term’s ordinary meaning.

This inquiry presents an initial impediment. “Relating to” is commonly used in two distinct parts of speech: (1) a preposition or (2) a verb. When used as a preposition, “relating to” generally means “about” or “concerning.” See, e.g., Relating to Synonyms, Thesaurus.com., http:// thesaurus.com/browse/relating+to (last visited June 18, 2012). For instance, Justice O’Connor has written that “requiring that the woman be informed of the availability of information relating to fetal development ... is a reasonable measure to ensure an informed choice.” Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 883, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). Yet one can use the verb “relate” phrasally (i.e., with “to”) and in gerund form (i.e., with the -ing ending), resulting in the phrase “relating to.” So used, “relating to” ordinarily connotes an association or connection between two or more things. See. e.g., Relate, Merriam Webster.com, http://www.merriamwebster.com/dictionary/relate (last visited June 18, 2012). For example, Justice Thomas has written that “I have repeatedly stated that the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries relating to a criminal sentence.” Erickson v. Pardus, 551 U.S. 89, 95, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (Thomas, J., dissenting) (emphasis added) (citations omitted).

Substituting the common meanings of the preposition “relating to” and the phrasal verb “relate to” in the above-cited examples illustrates the linguistic distinction between these terms. For instance, it would have been awkward had Justice O’Connor written that “requiring that the woman be informed of the availability of information [connected with] fetal development ... is a reasonable measure to ensure an informed choice.” Similarly, it would have sounded strange had Justice Thomas slated that “the Eighth Amendment’s prohibition on cruel and unusual punishment historically concerned only injuries [about] a criminal sentence.” This distinction is important in that, generally speaking, “relating to” has a broader meaning when used as a preposition than when used as a phrasal verb.

One cannot clearly discern which of these senses Congress intended from the CPSIA’s text. That Congress failed to define “relating to” in the CPSIA encumbers the examination. Yet this omission does not end the textual inquiry. It is a time-honored principle that courts must construe statutes as a whole. See, e.g., Graham Cnty. Soil and Water Conserva. Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 130 S.Ct. 1396, 1404, 176 L.Ed.2d 225 (2010) (citing Gustafson v. Alloyd Co., 513 U.S. 561, 568, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)). As a corollary, courts may consider the way Congress has used a specific term elsewhere in a statute to glean its meaning. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 130 S.Ct. 1605, 1615, 176 L.Ed.2d 519 (2010) (citing Dada v. Mukasey, 554 U.S. 1, 16, 128 S.Ct. 2307, 171 L.Ed.2d 178 (2008)). Likewise, courts may look to the entire statutory scheme surrounding an ambiguous term for clues as to its meaning. AT & T Mobility LLC v. Concepcion, — U.S. -, 131 S.Ct. 1740, 1754, 179 L.Ed.2d 742 (2011) (citing United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)).

This comparative approach is also inconclusive as to the purport of the at-issue phrase. Concededly, Congress’s use of “relating to” in the CPSIA and its sibling statute, the Consumer Product Safely Act (“CPSA”), Pub.L. No. 92-573, 86 Stat. 1207 (1972) (codified as amended in scattered sections of 15 U.S.C.), lends lukewarm support to the inference that Congress used it prepositionally in the provisions in dispute. For instance, a CPSIA provision requires the Commission to forward to the manufacturer “information relating to the serial or model number of the product” where the Commis7 sion obtains such information. See 15 U.S.C.A. § 2055a(c)(5)(A) (West 2009) (emphasis added). By way of further illustration, the CPSA requires the Commission to “maintain an Injury information Clearinghouse to collect ... injury data ... relating to the causes ... of death, injury, and illness associated with consumer products,” 15 U.S.C. § 2054(a), (1) (2006) (emphases added). In the Court’s estimation, these examples constitute prepositional uses of “relating to.” Indeed, in the CPSA provision, Congress uses “relating to” in the same sentence as “associated with,” strongly suggesting a prepositional use of “relating to.” The prepositional use of “relating to” appears to preponderate in the CPSA and its amending statutes. See generally 15 U.S.C.A. §§ 2051 et seq. (West 2009).

The Court is reluctant to read too much into these observations. Aside from the disputed provisions, it is unclear that all of Congress’s uses of “relating to” in the CPSIA are prepositional. For example, the section in which the disputed provisions appear also prescribes that the database shall include “[ijnformation derived by the Commission ... relating to a ... voluntary corrective action taken by a manufacturer.” 15 U.S.C.A. § 2055a(b)(l)(B) (West 2009) (emphasis added). Replacing “relating to” in this provision with synonyms for either the prepositional or the verbal use of “relating to” would render a grammatically correct and natural sentence. For instance, Congress could have meant “information derived by the Commission concerning a voluntary corrective action taken by a manufacturer.” Conversely, Congress could have meant “information derived by the Commission connected with a voluntary corrective action taken by a manufacturer.”

The inference that Congress might have meant to use “relating to” in § 2055a(b)(l)(B) to connote a connection becomes clearer when one substitutes “relating to” with the linguistic cousin of the phrase “connected with”: “in connection with.” The resultant clause would thus read: “information derived by the Commission in connection with a voluntary corrective action taken by a manufacturer.” Admittedly, “in connection with” is a preposition, not a verb. See, e.g., In connection with Synonyms, Thesaurus.com, http://thesaurus.com/browse/in + connection-)-with (last visited June 18, 2012). Nevertheless, one cannot mistake its close nexus with the concepts of connection and association. In short, then, the CPSIA’s other uses of “relating to” fail to illustrate its part of speech, let alone its elusive meaning.

The same goes for the CPSA and its amendments. Consider the provision requiring the Commission to “maintain an Injury Information Clearinghouse to collect ... injury data ... relating to the causes ... of death, injury, and illness associated with consumer products.” 15 U.S.C. § 2054(a), (1) (2006) (emphases added). Even though the use of “relating to” and “associated with” in the same clause implies a different meaning, this apparent contradistinction may just reflect a stylistic preference to avoid redundancy. Cf. United States v. Cook, 384 U.S. 257, 260, 86 S.Ct. 1412, 16 L.Ed.2d 516 (1996) (crediting the United States’ argument that statutory language merely reflected Congress’s stylistic preference). Furthermore, while the prepositional use of “relating to” appears to prevail to the CPSA and its amending statutes, one can likewise limit these examples. Cf. e.g., 15 U.S.C. § 2060(g)(1) (2006) (using “relating to” prepositionally simply to state the subject of statutory provisions).

The analysis above demonstrates the facial ambiguity of “relating to.” Despite this ambiguity, the Court need not definitively determine its part of speech and underlying contextual meaning. For the Commission’s own regulations make it copiously clear that the Commission has adopted the view that the report of harm must be “related to” (i.e., “connected with” or “associated with”) the consumer product for the report to qualify for publication on the database. See 16 C.F.R. § 1102.10(d)(3) (2011); id. § 1102.10(f)(9)(3); id. § 1102.20(b)(3)-(4); id. § 1102.26(a)(l)(iii), (2)(iii). Thus, a determination that the [redacted] does not relate to [redacted] would show that the Commission’s decision contradicts its own regulations. This outcome, in turn, would tend to establish that the Commission’s conduct is arbitrary and capricious. To be sure, other relevant considerations could strengthen this conclusion.

Before expounding wherein the Commission’s actions are arbitrary and capricious, the Court must entertain two preliminary issues: (1) whether the Court must defer to the Commission’s interpretation of its ambiguous implementing regulations as per Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); and (2) whether the CPSIA’s facial ambiguity calls for Chevron deference. See generally Chevron, 467 U.S. 837, 104 S.Ct. 2778. The Court addresses these arguments in turn.

1. The Propriety of Deference Under Auer

A regulation must be ambiguous for it to qualify for Auer deference. This begs the question: What did the Commission mean when it mandated that the report of harm must be “related to” the consumer product? As indicated above, dictionaries are a leading source of words’ ordinary meaning. See, e.g., Schindler Elevator Corp. v. United States ex rel. Kirk, — U.S. -, 131 S.Ct. 1885, 1891, 179 L.Ed.2d 825 (2011); United States v. Bestfoods, 524 U.S. 51, 66-67, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998); MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 224-26, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994). in its relevant sense, Merriam Webster’s- Online Dictionary defines relate as “to have relationship or connection.” Relate, Merriam Webster.com, http://www.merriamwebster.com/ dictionary/relate (last visited June 18, 2012). Merriam Webster’s then defines “relationship” as “relation” and, in turn, relation as “an aspect or quality ... that connects two or more things or parts as being or belonging or working together or as being of the same kind .” Relation, Merriam Webster.com, http://www.memamwebster. com/dictionary/relation (last visited June 18; 2012) (first emphasis added). Dictionary.com’s definition of relate conforms to Merriam Webster’s. Dictionary.com defines relate as “to have some relation.” Relate, Dictionary.com, http://dictionary. reference.com/browse/relate (last visited June 18, 2012). Relation, in turn, is defined as “an existing connection; a significant association between or among things: the relation between cause and effect.” Relation, Dictionary.com, http:// dictionary.reference.com/browse/relation (last visited June 18, 2012) (some emphases added). These definitions are representative of those that other quotidian dictionaries advance. See. e.g., relation, The Free Dictionary.com, http://www.thefree dictionary.com/relation (last visited June 18, 2012) (some emphases added) (defining relation as “[a] logical or natural association between two or more things; relevance of one to another; connection: the relation between smoking and heart disease ”). Similar examples abound.

Still, it is difficult to distill a common denominator from these definitions. Clearly, for two (or more) things to relate to each other, they must bear a connection or association. Yet, to some extent, the words connection and association are intrinsically indefinite. A restrictive reading of these terms would support the assertion that “relate to” connotes a significant correlative or logical relationship. A broad reading, by contrast, would boost the thesis that “relate to” simply signifies the existence of a connection or association, however attenuated. In short, the Commission’s requirement that the report of harm relate to the consumer product crosses the threshold of facial ambiguity.

Notwithstanding this ambiguity, the Court declines to defer under Auer to the Commission’s capacious construction of “relate to.” The United States Supreme Court has held that courts owe ambiguous agency regulations no deference where “the underlying regulation does little more than restate the terms of the statute itself.” Gonzales v. Oregon, 546 U.S. 243, 257, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006). In Gonzales, the Court considered “whether the Controlled Substances Act allow[ed] the United States Attorney General to prohibit doctors from prescribing regulated drugs for use in physician-assisted suicide, notwithstanding a state law permitting the procedure.” 546 U.S. at 248-49, 126 S.Ct. 904. Generally, the Controlled Substances Act (“CSA”) required a valid prescription for the distribution of drugs used in physician-assisted suicide and defined valid prescription as one “issued for a legitimate medical purpose.” See id. at 257, 126 S.Ct. 904 (quoting 21 U.S.C. § 830(b)(3)(A)(ii) (2006)). Tracking the language of this provision, a regulation that the Attorney General promulgated prescribed that “every prescription for a controlled substance ‘be issued for a legitimate medical purpose.’ ” Id. at 250, 126 S.Ct. 904 (quoting 21 C.F.R. § 1306.04(a) (2005)). The Attorney General issued an Interpretive Rule pertinently providing that “ ‘assisting suicide is not a “legitimate medical purpose” within the meaning of 21 C.F.R 1306.04 (2001).’ ” Id. at 254, 126 S.Ct. 904 (emphasis added) (quoting 66 Fed.Reg. 56,608 (2001)).

The Government argued that the Interpretive Rule elaborated the relevant regulation and, therefore, warranted Auer deference. Id. at 256, 126 S.Ct. 904. The Court rejected this argument. Id. at 256-57, 126 S.Ct. 904. In deciding that Auer deference was inappropriate, the Court observed that the relevant regulation repeated the related statutory provision. Id. at 257, 126 S.Ct. 904. The Court reasoned that “the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute.” Id. In other words, “[a]n agency does not acquire special authority to interpret its own words when, instead of using its expertise and experience to formulate a regulation, it has elected merely to paraphrase the statutory language.” Id. at 257, 126 S.Ct. 904.

In this case, as in Gonzales, the Commission’s regulations repeat the relevant statutory language. As spelled out above, the CPSIA requires the database to include “[rjeports of harm relating to the use of consumer products.” 15 U.S.C.A. § 2055a(b)(l)(A) (West 2009) (emphasis added). Regurgitating this language, a Commission regulation defines report of harm as “any information ... regarding [harm] ... relating to the use of a consumer product.” 16 C.F.R. § 1102.6(b)(8) (2011). Again echoing the CPSIA’s language, a separate regulation prescribes that the harm the report describes must be “related to use of the consumer product.” Id. § 1102.10(d)(3). The regulations are replete with similar examples. Indeed, the Commission seems to concede that “[t]he Regulations closely track the enabling statute.” Def.’s Mem. Opp’n PL’s Mot. Prelim. Inj. 18, Doc. No. 16. Thus, like the Attorney General in Gonzales, the Commission failed to use its expertise and experience to formulate the regulations. In such cases, the Commission does not acquire special authority to interpret its own words. Accordingly, the Commission’s conclusion that [redacted] deserves no Auer deference.

2. The Propriety of Deference Under Chevron

The conclusion that the Commission’s interpretation of its regulations deserves no Auer deference does not apodictically obviate the prospect of deference to its interpretation of the CPSIA. For the Court has yet to assess whether the Commission’s decision merits Chevron deference. See Gonzales, 546 U.S. at 258-69, 126 S.Ct. 904 (considering whether the Attorney General’s Interpretive Rule warranted Chevron deference after concluding that it deserved no Auer deference); see also AT. Massey Coal Co. v. Holland, 472 F.3d 148, 154 (4th Cir.).

a. Chevron Background

Chevron sets forth a two-step framework regulating review of an agency’s construction of a statute it administers. “First, always, is the question whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter; for the court ... must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Courts refer to this first step as “Chevron step one.” See, e.g., Mayo Found, for Med. Educ. and Research v. United States, — U.S. -, 131 S.Ct. 704, 711, 178 L.Ed.2d 588 (2011). “If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute.... ” Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (footnote omitted). “Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. Courts refer to this second step as “Chevron step two.” See, e.g., Mayo Found., 131 S.Ct. at 711. “This analytical approach applies not only when a regulation is directly challenged ... but also when a particular agency action is challenged .... ” Kentuckians for Commonwealth Inc. v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.2003) (emphasis added); see also Stephen G. Breyer et al., Administrative Law and Regulatory Policy: Problems, Text, and Cases 341 (6th ed. 2006) (“It is now accepted that the same level of deference applies to interpretations invoked by an agency to decide adjudications.”).

i. Chevron Step One

As the foregoing discussion demonstrates, the meaning of the language “reports of harm relating to the use of consumer products” is ambiguous. The CPSIA’s facial ambiguity does not, however, lead the Court ineluctably to the application of Chevron step two. “Under the first step of Chevron, a reviewing court is to ‘employ [ ] traditional tools of statutory construction’ to determine whether Congress addressed ‘the precise question at issue.’ ” Nat. Elec. Mfrs. Ass’n v. U.S. Dep’t of Energy, 654 F.3d 496, 504-05 (4th Cir.2011) (quoting Chevron, 467 U.S. at 842, 843 n. 9, 104 S.Ct. 2778). The Fourth Circuit has “described legislative history as one of the traditional tools of interpretation to be consulted at Chevron’s step one.” Id. at 504-05; see also, e.g., Rust v. Sullivan, 500 U.S. 173, 186-87, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (reasoning that resort to Chevron step two is proper where review of the statute’s legislative history fails to resolve its ambiguity). At the same time, the Fourth Circuit has cautioned courts against overreliance on legislative history at Chevron step one. Nat. Elec., 654 F.3d at 505.

The legislative history that the Parties discuss fails to resolve the CPSIA’s ambiguity regarding the meaning of “relating to.” The Commission’s primary argument is that the CPSIA reflects Congress’s intent to quicken the time it takes the Commission to release reports of harm to the public. In the Commission’s estimation, the CPSA circumscribed the Commission’s capacity to publish injury data identifying manufacturers. The Commission cites two examples. One, before the Commission could publish injury data identifying manufacturers, the CPSA required the Commission to notify the manufacturer of such data and allow it to respond. See 15 U.S.C. § 2055(b)(1) (2006). Two, under the CPSA, manufacturers had a private right to seek an injunction enjoining the disclosure of the data. See 15 U.S.C. § 2055(b)(3)(A) (2006). The Commission observes that Congress exempted from these CPSA provisions the reports of harm whose publication, in proper circumstances, the CPSIA commands. See 15 U.S.C.A. § 2055a(a)(f)(l) (West 2009).

According to the Commission, the CPSIA’s goal of disencumbering the dissemination of injury data counsels for an expansive reading of the term “relating to.” To strengthen this conclusion, the Commission cites two Congressmen’s floor statements for the proposition that the CPSIA contemplates swift publication in lieu of time-consuming investigation. See 154 Cong. Rec. S786768 (daily ed. July 31, 2008) (statement of Sen. Inouye); 154 Cong. Rec. 1-17577-78 (daily ed. July 30, 2008) (statement of Rep. Markey); but cf. Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (floor statements are less probative of Congressional intent than other common sources of legislative history).

That this, sparse legislative history fails to compel the conclusion that Congress intended “relating to” to cover anything under the sun is self-evident. In fact, some of the floor statements that Congressmen made in the prelude to the CPSIA’s passage equally support the inference that Congress intended “relating to” to create a closet nexus between the report of harm and the use of the consumer product. For his part, Senator Levin stated “This bill will ... require CPSC to provide consumers with a user-friendly database on deaths and serious injuries caused by consumer products.” 154 Cong. Rec. S7870 (daily ed. My 31, 2008) (Statement of Sen. Levin) (emphasis added). Similarly, in discussing the CPSIA’s ameliorative aims, Representative Markey deplored “information that does not identify which specific products are causing problems and is therefore of no real use to consumers.” 153 Cong. Rec. 1116,886 (Dec. 19, 2007) (statement of Rep. Markey) (emphasis added). At a minimum, then, the legislative history is a wash. Hence, mindful of the Fourth Circuit’s admonition against overreliance on legislative history at Chevron step one, the Court proceeds to Chevron step two.

ii. Chevron Step Two

Chevron step two asks whether the agency based its action on a “permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. An agency’s construction of an ambiguous statute is permissible where it is reasonable in light of the structure and purpose of the statute. See Regions Hosp. v. Shalala, 522 U.S. 448, 457, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998). It follows that an agency’s interpretation of an ambiguous statute is impermissible where it is “ ‘arbitrary or capricious in substance.’ ” Mayo Found., 131 S.Ct. at 711-12 (quoting Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 242, 124 S.Ct. 1741, 158 L.Ed.2d 450 (2004)); cf. State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (emphasis added) (citation and internal quotation marks omitted) (even though “scope of review under [APA’s] arbitrary and capricious standard is narrow,” agency must “articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made”). Thus, the dispositive issue is whether the Commission’s determination that [redacted] is arbitrary or capricious in substance. But, before crossing this bridge, the Court must broach an initial analytic barrier.

(1) The Propriety of Condensing Arbitrary and Capricious Review Un- ■ der Chevron and the APA

The ultimate issue is whether the Commission’s decision constitutes arbitrary and capricious conduct under the APA. It is thus advisable to ask whether a determination that the Commission’s decision is arbitrary and capricious within the meaning of Chevron compels the conclusion that the Commission’s decision is arbitrary and capricious for APA purposes.

For present purposes, the Court concludes that it does. In a recent decision, the Supreme Court strongly suggested that the “arbitrary and capricious” analysis under Chevron overlaps with the same under the APA. See Judulang, 132 S.Ct. at 484 n. 7. In Judulang, the Court denied the Government’s request to analyze the case under Chevron step two. Id. Owing to reasons irrelevant here, the Court opted instead to analyze the case under the APA. See id. In so doing, the Court stated unequivocally that “[were we to analyze the case under Chevron ], our analysis would be the same, because under Chevron step two. we ask whether an agency interpretation is arbitrary or capricious in substance.” Id. (internal quotation marks omitted) (citing Mayo Found., 131 S.Ct. at 711). The Supreme Court’s decisive dictum in Judulang reflects the prevailing view. See, e.g., NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 255-56, 264, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995) (rejecting respondent’s APA claim because agency’s construction of ambiguous provisions of National Bank Act was reasonable under Chevron); Rivenburgh, 317 F.3d at 439 (courts must apply Chevron analysis when reviewing particular agency action under the APA); cf. Breyer et al., supra at 328; Laurence H. Silberman, Chevron — The Intersection of Law & Policy, 58 Geo. Wash. L.Rev. 821, 827-28 (1990). But cf, e.g., Nat. Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 1000, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (reviewing, albeit briefly, agency action under the APA after having extensively analyzed it under Chevron step two); Am. Petroleum Inst. v. U.S. EPA 216 F.3d 50, 57 (D.C.Cir.2000) (citations omitted) (“The second step of Chevron analysis and State Farm arbitrary and capricious review overlap, but are not identical.”). Therefore, in deciding whether the Commission’s decision is arbitrary and capricious, the Court consolidates the Chevron step two and APA arbitrary and capricious analyses.

(2) The Commission’s Arbitrary and Capricious Action

Now the Court must explain why the Commission’s decision to publish the incident report is arbitrary and capricious. Although the Supreme Court has yet to navigate the full waters of arbitrary and capricious conduct, it provided a polestar in this voyage in Judulang v. Holder, supra. In Judulang, the Court considered whether the Board of Immigration Appeals’ (“BIA”) policy for deciding whether an alien is eligible for relief from deportation under a since-repealed provision of the Immigration and Nationality Act (“INA”) was arbitrary and capricious under the APA. Judulang, 132 S.Ct. at 483. The factual background in Judulang is complex; the Court sketches its contours in the interest of clarity and concision.

Until its 1996 repeal, § 212(c) of the INA authorized the Attorney General to admit aliens who had committed certain crimes (e.g., an alien who traveled abroad and sought to reenter the United States). Id. at 479-80 (citing 8 U.S.C. § 1182(c) (1994)). By its terms, § 212(c) did not apply when the Government sought to deport aliens who had committed certain crimes. Id. at 480. Over time, this discrepancy induced the BIA to apply § 212(c) in deportation proceedings irrespective of an alien’s travel history. Id.

Deciding when to deport aliens under § 212(c) is still complicated. Id. at 481. This complexity traces to two primary sources. First, § 212(c) facially applied only to decisions whether to admit criminal aliens. Id. Second, immigration laws then — as now — provided “two separate lists of substantive grounds” for admission and deportation actions. Id. at 479. Against this backdrop, the BIA had to formulate an approach to determine whether to refrain from deporting criminal aliens. Id.

The BIA developed an approach called the “comparable grounds rule.” Id. at 481 (citation omitted). This approach evaluates whether the ground for deportation (i.e., the crime committed) has a “close analogue” in the statute’s list of admission grounds (i.e., the list of offenses for which the Attorney General is authorized to admit a criminal alien). Id. (citations omitted). In other words, the criminal alien is eligible for § 212(c) relief if the crime for which the Department of Homeland Security (“DHS”) seeks to deport him is “substantially equivalent” to one of the listed offenses that the Attorney General may, in essence, excuse.

The Petitioner, Joel Judulang, originally immigrated to the Un