[Federal Register: April 15, 2003 (Volume 68, Number 72)]
[Rules and Regulations]
[Page 18136-18143]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ap03-20]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 573, 577, 579
[Docket No. NHTSA 2001-8677; Notice 4]
RIN 2127-AI92
Reporting of Information and Documents About Potential Defects;
Defect and Noncompliance Reports
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule; partial response to petitions for reconsideration.
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SUMMARY: This document responds to some of the issues raised by
petitions for reconsideration of some of the provisions of the final
rule published on July 10, 2002, that implemented the early warning
reporting provisions of the Transportation Recall Enhancement,
Accountability, and Documentation (TREAD) Act. Under this rule, motor
vehicle and motor vehicle equipment manufacturers will be required to
report information and to submit documents about customer satisfaction
campaigns and other activities and events that may assist NHTSA to
promptly identify defects related to motor vehicle safety. The issues
responded to in this document primarily relate to field reports, one-
time historical reports, and multiple ``substantially similar''
platforms.
This document also clarifies several other provisions of the final
rule. The agency's response to petitions for reconsideration of other
provisions of the final rule will appear in a future notice.
[[Page 18137]]
DATES: Effective Date: The effective date of the amendments made by
this final rule is May 15, 2003. Applicability Dates: Various
provisions of this final rule are applicable on the dates stated in the
regulatory text. See 49 CFR 579.28. Petitions for Reconsideration:
Petitions for reconsideration of amendments made by this final rule
must be received not later than May 30, 2003.
ADDRESSES: Petitions for reconsideration of any amendments made by this
final rule should refer to the docket and notice number set forth above
and be submitted to Administrator, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590, with a
copy to Docket Management, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590. See section VI ``Privacy Act Statement'' for
electronic access and filing addresses.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, contact Jonathan
White, Office of Defects Investigation, NHTSA (phone: 202-366-5226).
For legal issues, contact Taylor Vinson, Office of Chief Counsel, NHTSA
(phone: 202-366-5263).
SUPPLEMENTARY INFORMATION:
I. Background
On July 10, 2002, NHTSA published a final rule implementing the
early warning reporting (EWR) provisions of the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act, established
by 49 U.S.C. 30166(m) (67 FR 45822). The reader is referred to that
document, and the prior Notice of Proposed Rulemaking (NPRM) (66 FR
66190) for further information.
Petitions for reconsideration of the EWR rule were filed on or
before August 26, 2002, by the Alliance of Automobile Manufacturers
(the Alliance), General Motors Corporation (GM), the National
Association of Trailer Manufacturers (NATM), the National Truck
Equipment Association (NTEA), the Recreational Vehicle Industry
Association (RVIA), and the Juvenile Products Manufacturers Association
(JPMA).
GM and NATM filed untimely supplemental comments on October 15,
2002, and a petition for rulemaking was filed by the National Trailer
Dealers Association (NTDA) on November 1, 2002, relating to the
threshold for full reporting. On November 23, 2002, NATM filed a
petition for rulemaking to delay the initial reporting date under the
rule, as did NTEA and RVIA jointly, on December 5, 2002. Additional
untimely comments were filed by Public Citizen on November 26, 2002,
and Stephen E. Selander on November 27, 2002. To the extent
appropriate, given their untimeliness, we will address the late-filed
comments in a future notice.
On October 10, 2002, the Alliance wrote to NHTSA requesting that
certain issues it had raised in its petition be treated on a
prioritized basis. It separated its issues into three groups and
explained that ``Generally, those issues given a priority `1' rating
are those that require resolution to allow Alliance members to
effectively plan and efficiently execute actions needed to develop
compliant reporting systems.'' These issues concerned field reports,
in-plant inspection records and other documents, one-time historical
reports, and multiple ``substantially similar'' platforms. After
reviewing the Alliance's comments and letter of October 10, the agency
has concluded that granting this request may aid in an orderly
implementation of the final rule and is issuing this notice addressing
the Alliance's priority ``1'' issues.
We will address the Alliance's priority ``2'' and ``3'' issues in
the future. We will also address other issues that were timely raised
by the other petitioners for reconsideration.
II. Petitions Regarding Field Reports
The final rule defined ``field report'' as a ``communication * * *
regarding the failure, malfunction, lack of durability, or other
performance problem of a motor vehicle or motor vehicle equipment * * *
regardless of whether verified or assessed to be lacking in merit. * *
*.'' It excluded ``a document contained in a litigation file that was
created after the date of the filing of a civil complaint that relates
to the specific vehicle, component, or system at issue in the
litigation.'' This reflected an attempt both to recognize the work
product exclusion under the rules of evidence and to address it in a
simplified manner based on the existence of a litigation file. We
thought that this approach would have appeal because overall it would
provide approximately the same coverage as a rule strictly based on the
work product case law and would not require document by document
review. The Alliance, however, asserted that this exclusion is too
narrow and should be broadened to state that the definition ``does not
include documents that were prepared in anticipation of litigation.''
Similarly, GM commented that ``documents prepared at the request of
counsel, whether outside counsel or in-house attorneys, are also
privileged if the work was done in anticipation of a lawsuit being
filed.'' It asked the agency ``to reconsider its decision to use the
filing of a civil complaint as a litmus test for determining whether or
not a document is privileged.'' As GM recognized in a comment, the vast
majority of field reports do not have any work product or privilege
issues associated with them.
There is no need for this notice to provide a detailed discussion
of the work product doctrine, given the facts that only a small
minority of field reports would be considered work product and that the
doctrine is well established under Federal law. We refer the reader
generally to Edna Selan Epstein, The Attorney--Client Privilege and the
Work Product Doctrine (3d Ed. 1997), published by the American Bar
Association. In short, the work product exclusion applies to (1)
documents in the broad sense of the word, (2) prepared in anticipation
of litigation, where there is a reasonable prospect of litigation, and
not for some other purpose such as a business practice, and (3)
prepared or requested by an attorney or an agent for an attorney.
The Alliance's proposed modification to the definition of field
report presents several problems. First, it does not expressly
recognize that two mutually exclusive options have been considered: (1)
A simplified approach based on the existence of a litigation file, as
published on July 10, 2002, and (2) an approach based on the work
product case law, which was advanced by the petitions for
reconsideration. We will, as suggested by the petitions, adopt the
latter approach in lieu of the simplified approach. Second, the
Alliance's recommended exclusion is too broad, since it does not
include some required elements of the work product doctrine. For
example, more is required to meet the criteria for the exclusion than
that a document has been created in anticipation of litigation.
Finally, we wish to underscore that the document truly must have
been prepared ``in anticipation of litigation.'' The Alliance's comment
indicates that, in its opinion, counsel may anticipate litigation
``after a claim is made, but prior to the filing of a lawsuit, or after
the filing of a ``notice'' that a ``claim'' might be asserted.'' GM
suggested that the work product exclusion cover reports prepared in
anticipation of litigation after a claim has been filed and, although
it would be less frequent, before a claim has been filed. In practice,
reports prepared after a claim has been filed ordinarily would be more
likely to be covered by the work product exclusion than reports
prepared after a ``notice'' was received by a manufacturer. Under the
early warning rule, Sec. 579.4(c), ``claim'' includes a
[[Page 18138]]
demand in the absence of a lawsuit and a complaint initiating a
lawsuit. The definition of ``notice'' refers to ``a document * * * that
does not include a demand for relief.'' We expect that many notices
would not satisfy the requirements for the work product exclusion.
Accordingly, we have granted the petitions for reconsideration on
this issue, and are amending the definition of ``field report'' to
delete the final phrase ``but does not include a document contained in
a litigation file that was created after the date of the filing of a
civil complaint that relates to the specific vehicle component, or
system at issue in the litigation.'' In its place we are adding the
phrase ``but does not include a document covered by the attorney-client
privilege or the work product exclusion.'' We are adding a separate
definition of ``work product'' as meaning ``a document in the broad
sense of the word, prepared in anticipation of litigation where there
is a reasonable prospect of litigation and not for some other purpose
such as a business practice, and prepared or requested by an attorney
or an agent for an attorney.''
GM commented that, were we to exclude field reports prepared in
anticipation of litigation, its burden of preparing the one-time
historical report would be substantially lessened. The agency's
amendment, therefore, will lessen the burden on all manufacturers who
must prepare the historical report (see discussion in Section IV below
on historical reports).
Further exclusions were also requested. GM and the Alliance asked
the agency to clarify that field reports do not include ``data
concerning vehicles that are still within a manufacturer's direct
control'' and, consistent with defect notification requirements (Sec.
573.3(a)), only include reports on ``vehicles and equipment that have
been transported beyond the direct control of the manufacturer.'' The
commenters feared that ``field report'' could be interpreted to include
``quality data from assembly plants.''
We have considered these comments. We agree that the use of an
existing regulatory phrase, ``beyond the direct control of the
manufacturer,'' would be consistent with what we intended in requiring
reports on field reports. By adding the words ``with respect to a
vehicle or equipment that has been transported beyond the direct
control of the manufacturer,'' we clarify that quality data from
assembly plants or port inspections would not be considered field
reports.
Under the EWR rule, manufacturers of more than 500 motor vehicles
per year must provide NHTSA with numbers of all field reports and
copies of some field reports. The term ``field report'' is defined to
include ``a communication * * * by an entity that owns or operates a
fleet.'' ``Fleet,'' in turn, is defined as ``more than ten motor
vehicles of the same make, model, and model year.'' The Alliance
asserted that ``it is usually not obvious on the face of a written
complaint from a customer or other person making the complaint whether
that customer owns ten or more vehicles of the same make, model, and
model year,'' because manufacturers do not know on any systematic basis
how many vehicles a customer owns, with the possible exception of large
fleets, such as rental car firms. In its view, it would be burdensome
``to require each manufacturer to check the ownership status of each
customer who makes a written complaint * * * to determine whether that
customer owns ten or more motor vehicles of the same make/model/year.''
We understand the Alliance's point, and want to clarify that
manufacturers are obliged to provide fleet report information only for
those fleets known to it. This is consistent with the TREAD Act's
provision (49 U.S.C. 30166(m)(4)(B)) that a manufacturer does not have
to maintain or submit records regarding information not in its
possession. Accordingly we are amending the definition of ``field
report'' to include written reports from ``an entity known to the
manufacturer as owning or operating a fleet.''
The Alliance asked for confirmation that NHTSA will not consider
any internal company correspondence about the subject of a field
report, subsequent to the filing of the report, to be itself a
reportable field report. The ``field'' is any location where a vehicle
or equipment beyond the direct control of a manufacturer is located.
Thus, we do not view the field as encompassing the company itself or
its internal correspondence about a field report after it has been
filed. However, our definition of ``field report'' would cover any
further communication from the field in response to inquiries from the
company for clarifications, further data, and the like on a field
report that has been filed.
In light of the discussion above, we are redefining field report as
follows:
Field report means a communication in writing, including
communications in electronic form, from an employee or
representative of a manufacturer of motor vehicles or motor vehicle
equipment, with respect to a vehicle or equipment that has been
transferred beyond the direct control of the manufacturer, a dealer,
an authorized service facility of such manufacturer, or an entity
known to the manufacturer as owning or operating a fleet, to a
manufacturer, regarding the failure, malfunction, lack of
durability, or other performance problem of a motor vehicle or motor
vehicle equipment, or any part thereof, produced for sale by that
manufacturer, regardless of whether verified or assessed to be
lacking in merit, but does not include a document covered by the
attorney-client privilege or the work product exclusion.
III. Petitions Regarding One-Time Historical Reporting
Section 579.28(c) requires that certain manufacturers file separate
reports providing information on the numbers of warranty claims or
warranty adjustments and the number of field reports that they received
in each calendar quarter from April 1, 2000, to March 31, 2003, for
vehicles manufactured in model years 1994 through 2003, and for child
restraint systems and tires manufactured after April 1, 1998,
classified by the affected system or component, e.g., electrical
system, seat belts. The final rule defines ``warranty claim'' to
include a claim paid by a manufacturer pursuant to good will. ``Good
will,'' in turn, is defined as ``the repair or replacement of a motor
vehicle or item of motor vehicle equipment, including labor paid for by
the manufacturer, at least in part, when the repair or replacement is
not covered under warranty, or under a safety recall reported to NHTSA
under part 573 of this chapter.''
The Alliance sought reconsideration of ``the requirement to count
and categorize historic field reports into the reporting categories
established in the final rule,'' as well as ``goodwill'' claims outside
the warranty system. Even though the final rule does not require
submission of hard copies of field reports for the one-time historical
reporting, the Alliance asserted that the burden to review and
categorize historic field reports nevertheless remains substantial,
``and falls disproportionately on those Alliance members whose field
reports are not already coded or retained in a text-searchable
format.'' The Alliance also asserted that requiring manufacturers to
search through historic files ``to locate any `goodwill' claims that
were paid outside the warranty system or settlements of `breach of
warranty' claims/lawsuits'' would provide only a minimal benefit to the
agency. The Alliance did not question the inclusion of these claims
once reporting has begun. According to its comment, ``goodwill'' claims
handled outside the
[[Page 18139]]
warranty system are, by definition, not in the already-coded warranty
base, nor are settled claims for breach of warranty.
Based on the cost estimates submitted by the Alliance in response
to the NPRM, the agency estimated the burden upon industry that one-
time historical reporting of field reports might create. That burden
was not very significant, compared to the burden that would have
existed under the NPRM proposal regarding historical reporting. After
the issuance of the final rule, the Alliance and GM now claim that the
burden estimate that they previously submitted is substantially less
than their real costs. Each argued that the effort required to extract
the information is too high for the value of the reports rendered
because the information will be obsolete in a short while. We disagree
with that argument. We explained in the preamble to the July 10, 2002,
final rule why we need to receive historic information. See 67 FR
45863. In short, we need historic information to be able to recognize
changes in trends of experience with potential problems. We note that
no commenter provided any specific information on the data, data
systems, or categorization issues it may have or the numbers of these
that would create the allegedly undue burden.
On the other hand, we agree to the Alliance's request that we
exclude from historic reporting warranty claims that were not
memorialized in a manufacturer's warranty system. Accordingly we are
amending Sec. 579.28(c) to require only reporting of warranty claims
that are recorded in a manufacturer's warranty system. This will apply
not only to warranty claims of motor vehicle manufacturers but also to
warranty claims of child restraint systems, and warranty adjustments of
tire manufacturers.
JPMA expressed a concern about the potential burden that the one-
time historical reporting requirement of Sec. 579.28(c) might cause
its six members. In the context of this concern, we want to correct an
inadvertent mistake in the final rule with respect to the historical
reporting requirements applicable to child restraint system
manufacturers. Based on JPMA's statement in its response to the NPRM
that child restraint system manufacturers combine their warranty claim
data and consumer complaint data in a single database that would be
difficult to segregate, in the final rule we granted JPMA's request
that manufacturers of child restraint systems be allowed to report
these two categories of data together. See Sec. 579.25(c) and 67 FR at
45850-51. As we made clear in the preamble to the final rule, the
purpose of requiring one-time reporting of historical data was to allow
the agency to compare current data with past data to identify any
unusual or unexpected data points that might indicate the existence of
a safety problem. Unfortunately, the language of Sec. 579.28(c) did
not reflect the fact that child restraint system manufacturers would
prospectively be combining consumer complaint data with warranty data.
(Similarly, as pointed out by RMA in its petition, that section did not
reflect the fact that tire manufacturers will not be submitting field
report data in their forthcoming quarterly reports, so there is no need
to require them to submit historical data on field reports.) Therefore,
we are revising Sec. 579.28(c) to apply appropriate historical data
reporting requirements for vehicle, child restraint system, and tire
manufacturers, respectively.
JPMA asserted that NHTSA had greatly underestimated the total
industry time (2,540 hours) and expense ($117,531) to comply with Sec.
579.28(c) as originally adopted. It estimated that its members alone
would spend over 38,500 hours and $2 million to comply. The reason for
this, according to JPMA, is that the industry's records are not
automated to the degree that would permit easy preparation of this one-
time report. In part, this is due to the fact that, as discussed above,
customer complaints and warranty claims are ordinarily not
differentiated and are maintained in the same database.
We believe that it is important to have historical information with
respect to child restraint systems to permit us to identify potential
safety problems. Historical field report data would not, in itself,
allow a sufficient comparison. Therefore, to allow us to compare
similar data over time, and to relieve the burden asserted by JPMA, we
are amending sec. 579.28(c) to require child restraint system
manufacturers to provide historical reports on the numbers of warranty
claims ``and consumer complaints (added together).''
IV. Petitions Regarding Multiple ``Substantially Similar'' Platforms
The Alliance sought clarification on how it should handle the
reporting of a foreign fatality in a vehicle that has more than one
``substantially similar'' platform in the United States. The Alliance
asserted, ``It would seem redundant and confusing to report the single
fatality on each of the quarterly reports of all of the ``substantially
similar'' U.S. platforms.'' It suggested that a manufacturer ``should
be permitted to choose one of the ``substantially similar'' platforms
and report the foreign fatality on that platform's quarterly report.''
We are rejecting this request. In their review of information to
decide whether to open a defect investigation about a particular
problem in a specific make/model of vehicles in the United States, the
agency's screeners need to be aware of relevant information about the
make/model. If a manufacturer could choose to report a relevant foreign
fatality in its submission for only one U.S. model, the screeners would
not be aware of that fatality when considering a different model.
Moreover, the Alliance has not shown that this is a real problem and
that if it does arise, that it is likely to occur with any significant
frequency. We believe that a foreign fatality involving a foreign
vehicle that has more than one substantially-similar U.S. platform will
occur only infrequently, as there has been no showing that the number
of multiple substantially similar platforms is other than small.
V. Miscellaneous Amendments; Clarifications
Following publication of the rule, we received a number of
telephone calls asking questions about the meaning of various
provisions. In some cases, this has prompted our consideration of
whether some clarifications are needed.
We had a telephone call from a manufacturer of ambulances and buses
asking for a clarification of its reporting duties. The manufacturer's
annual ambulance production consisted of fewer than 500 units that are
defined as light vehicles and more than 500 that are defined as medium-
heavy vehicles (its bus production also exceeded 500 units). Section
579.27(a), providing limited reporting if annual vehicle production is
fewer than 500 vehicles, ``applies to all manufacturers of motor
vehicles that are not required to file a report pursuant to Sec. Sec.
579.21 through 579.24 of this part.'' Because the manufacturer is
required to file reports on its medium-heavy ambulances and buses
pursuant to Sec. 579.22, it questioned whether it was eligible to
report on its light duty ambulances under Sec. 579.27(a), or whether
reporting for these vehicles should be included with reporting for the
medium-heavy ambulances under Sec. 579.22. We intend that Sec. 579.27
apply to any vehicle category for which production is fewer than 500
units and we informed the manufacturer that it will file reports under
Sec. 579.27 for its light vehicle ambulances (however, its information
on medium-heavy ambulances would be reported cumulatively with its
information on buses). In view of the manufacturer's uncertainty, we
are
[[Page 18140]]
amending Sec. 579.27(a) to state that it ``applies to all
manufacturers of vehicles with respect to vehicles that are not covered
by reports on light vehicles, medium-heavy vehicles and buses,
motorcycles, or trailers submitted pursuant to Sec. Sec. 579.21
through 579.24 of this part.''
Another manufacturer, also in a telephone call, raised the question
of whether the reporting obligations encompassed vehicles that it
leased or only those vehicles that it ``manufactured for sale, offered
for sale, imported, or sold in the United States.'' We intended to
cover all vehicles that the manufacturer produced which are operated on
the public roads in the United States; i.e., which have been introduced
into interstate commerce, even if these are for lease or the
manufacturer's own use. Accordingly, we are amending the introductory
sentence of each of Sec. Sec. 579.21-579.26 to remove the phrase
quoted above and to replace it with the phrase that appears in 49
U.S.C. 30112(a): ``manufactured for sale, sold, offered for sale,
introduced or delivered for introduction in interstate commerce, or
imported into the United States.''
The definition of ``seats'' includes a reference to ``S9 of 209.''
There is no paragraph S9 in Federal Motor Vehicle Safety Standard No.
209, and we are removing the erroneous reference to S9 from the
definition of ``seats.''
We note that the TREAD Act reimbursement final rule adopted a
definition of ``rear-facing infant seat'' that differs from the one we
adopted in the early warning final rule. See our full discussion of
this issue at 67 FR 64056, October 17, 2002. In that discussion, we
announced that we would adopt the reimbursement rule definition when we
responded to petitions for reconsideration of the EWR rule, and we are
amending the definition of ``rear-facing infant seat'' accordingly. We
also note that the definition of ``minimal specificity'' refers to ``a
child seat,'' rather than to the defined term ``child restraint
system'' used elsewhere in the regulation. We are amending the
definition of ``minimal specificity'' to replace ``child seat'' with
``child restraint system.''
Washington attorney Jim Pitts called our attention to the fact that
there is no definition of ``model year'' for tires, yet Sec. 579.26
requires tire manufacturers to provide information on tire model years.
He found confusing the requirement that information be provided for
``the four calendar years prior to the earliest model year in the
reporting period * * *.'' The definition of ``model year'' provides
that ``For equipment, it means the year that the item was produced.''
However, as Mr. Pitts pointed out, the definition of ``equipment'' in
the EWR final rule does not include tires. Accordingly, we are amending
the definition of ``model year'' to clarify that ``For equipment and
tires, [model year] means the year that the item was produced.'' As for
the phrase that Mr. Pitts found confusing, we are amending Sec. 579.26
to require information to be provided for ``the four calendar years
prior to the reporting period.''
Section 579.5(d) requires each monthly submission of documents
pertaining to notices, bulletins, customer satisfaction campaigns,
consumer advisories, and other communications to be accompanied by a
document identifying each communication in the submission by name or
subject matter and date. The Alliance objected to this requirement as
unduly burdensome. It commented that NHTSA has not required such a
cover letter for these documents in the past and that the agency has
not demonstrated a need to impose this new obligation. We have reviewed
the past submissions of these and similar documents, and have concluded
that we do not need the cover document to achieve our goals under the
EWR rule. Accordingly, we are amending Sec. 579.5(c) to remove the
second sentence, which contains this requirement.
The amendments published on July 10, 2002, were effective on August
9, 2002, with early warning reporting to begin in 2003. Section
579.5(b) requires manufacturers to furnish NHTSA with a copy of certain
documents relevant to early warning reporting, e.g., communications
relating to customer satisfaction campaigns, consumer advisories,
recalls, or other safety activity involving the repair or replacement
of motor vehicle or motor vehicle equipment. Section 579.5(d) requires
information furnished under Sec. 579.5(a) (former Sec. 573.8) and
Sec. 579.5(b) to be submitted within five working days after the end
of the month in which it was issued. Washington attorney, Carey
Fleming, noted in a phone call that this requirement is inconsistent
with NHTSA's preamble statement that documents furnished under Sec.
579.5(b) ``will be due within 5 working days after the end of each
month beginning with April 2003'' (p. 45864). Mr. Fleming is correct,
and we are amending Sec. 579.5(d) in accordance with our preamble
statement to clarify that a document covered under Sec. 579.5(b) and
issued before April 1, 2003, need not be submitted. The first
submittals under subsection (b) will be documents issued during April
2003 which will be due not later than May 7, 2003 (i.e., the fifth
working day after April 30).
Finally, Mark Schildkraut of New York City reminded us in a phone
call that, in amending part 573 to redesignate Sec. 573.5 through
573.7 as Sec. Sec. 573.6 through 573.8, we forgot to make
corresponding amendments to references to these sections in Sec.
573.3(b), (c), (d), (e), and (f). We are correcting this oversight in
this notice, as well as making conforming amendments to 49 CFR 577.5(a)
and 577.10(a).
VI. Privacy Act Statement
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.
VII. Rulemaking Analyses
Regulatory Policies and Procedures
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993) provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. The Order defines as ``significant regulatory action''
as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
We have considered the impact of this rulemaking under E.O. 12866
and the Department of Transportation's regulatory policies and
procedures. This rulemaking has been determined to be
[[Page 18141]]
significant by the Office of Management and Budget under E.O. 12866
because of Congressional interest. For the same reason, this action has
also been determined to be significant under DOT's regulatory policies
and procedures. A detailed discussion of impacts can be found in the
Final Regulatory Evaluation (FRE) that the agency has prepared for the
rulemaking completed in July 2002 and filed in the docket. The changes
made by this final rule on reconsideration are relatively minor and
will reduce the burdens on manufacturers. This action does not impose
requirements on the design or production of motor vehicles or motor
vehicle equipment; it only requires reporting of information in the
possession of the manufacturer.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires agencies to evaluate the potential effects of their proposed
and final rules on small businesses, small organizations and small
governmental jurisdictions. Business entities are defined as small by
standard industry classification for the purposes of receiving Small
Business Administration (SBA) assistance. One of the criteria for
determining size, as stated in 13 CFR 121.201, is the number of
employees in the firm; another criteria is annual receipts. For
establishments primarily engaged in manufacturing or assembling
automobiles, light and heavy duty trucks, buses, motor homes, new
tires, or motor vehicle body manufacturing, the firm must have less
than 1,000 employees to be classified as a small business. For
establishments manufacturing many of the safety systems for which
reporting will be required, steering, suspension, brakes, engines and
power trains, or electrical system, or other motor vehicle parts not
mentioned specifically in this paragraph, the firm must have less than
750 employees to be classified as a small business. For establishments
manufacturing truck trailers, motorcycles, child restraints, lighting,
motor vehicle seating and interior trim packages, alterers and second-
stage manufacturers, or re-tread tires the firm must have less than 500
employees to be classified as a small business. The changes made in
this final rule on reconsideration are relatively minor and will reduce
burdens on at least some small manufacturers.
Based on the best information available to us at this time, I
certify that this final rule will not have a significant economic
impact on a substantial number of small entities.
Executive Order 13132 (Federalism)
Executive Order 13132 on ``Federalism'' requires us to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of ``regulatory policies that
have federalism implications.'' The Executive Order defines this phrase
to include regulations ``that have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' The agency has analyzed this final rule
in accordance with the principles and criteria set forth in Executive
Order 13132 and has determined that it will not have sufficient
federalism implications to warrant consultation with State and local
officials or the preparation of a federalism summary impact statement.
This final rule regulates the manufacturers of motor vehicles and motor
vehicle equipment and will not have substantial direct effect on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132.
Civil Justice Reform
This final rule will not have a retroactive or preemptive effect,
and judicial review of it may be obtained pursuant to 5 U.S.C. 702.
That section does not require that a petition for reconsideration be
filed prior to seeking judicial review.
Paperwork Reduction Act
The final rule requires manufacturers of motor vehicles and motor
vehicle equipment to report information and data to NHTSA periodically.
While we have not adopted a standardized form for reporting
information, we will be requiring manufacturers to submit information
utilizing specified templates. The provisions of this rule, including
document retention provisions, are considered to be information
collection requirements, as that term is defined by the Office of
Management and Budget (OMB) in 5 CFR part 1320. To obtain a three-year
clearance for information collection, we published a Paperwork
Reduction Act notice on June 25, 2002 (67 FR 42843), pursuant to the
requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
We received clearance from OMB on December 20, 2002, which will expire
on December 31, 2005. The clearance number is 2127-0616. The amendments
made by this final rule on reconsideration are relatively minor, and
should not affect paperwork burdens in a quantifiable way.
Data Quality Act
Section 515 of the FY 2001 Treasury and General Government
Appropriations Act (Pub. L. 106-554, section 515, codified at 44 U.S.C.
3516 historical and statutory note), commonly referred to as the Data
Quality Act, directed OMB to establish government-wide standards in the
form of guidelines designed to maximize the ``quality,''
``objectivity,'' ``utility,'' and ``integrity'' of information that
Federal agencies disseminate to the public. The Act also required
agencies to develop their own conforming data quality guidelines, based
upon the OMB model. OMB issued final guidelines implementing the Data
Quality Act (67 FR 8452, Feb. 22, 2002). On October 1, 2002, the
Department of Transportation promulgated its own final information
quality guidelines that take into account the unique programs and
information products of DOT agencies (67 FR 61719). The DOT guidelines
were reviewed and approved by OMB prior to promulgation.
NHTSA made information quality a primary focus well before passage
of the Data Quality Act, and has made implementation of the new law a
priority. NHTSA has reviewed its data collection, generation, and
dissemination processes in order to ensure that agency information
meets the standards articulated in the OMB and DOT guidelines, and
plans to review and update these procedures as appropriate.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in expenditures by State, local or tribal governments,
in the aggregate, or by the private sector, of more than $100 million
annually (adjusted annually for inflation with base year of 1995).
Adjusting this amount by the implicit gross domestic product price
deflator for the year 2000 results in $109 million (106.99/98.11 =
1.09). The assessment may be included in conjunction with other
assessments.
These amendments to the final rule (67 FR 45822 at 45872-45883) are
not estimated to result in expenditures by State, local or tribal
governments of more than $109 million annually. It is
[[Page 18142]]
not estimated to result in the expenditure by motor vehicle and motor
vehicle equipment manufacturers, child restraint system manufacturers,
and tire manufacturers of more than $109 million annually.
List of Subjects
49 CFR Part 573
Motor vehicle equipment, Motor vehicle safety, Reporting and
recordkeeping requirements, Tires.
49 CFR Part 577
Motor vehicle equipment, Motor vehicle safety, Reporting and
recordkeeping requirements, Tires.
49 CFR Part 579
Imports, Motor vehicle safety, Motor vehicles, Reporting and
recordkeeping requirements.
0
In consideration of the foregoing, 49 CFR chapter V is amended as
follows:
PART 573--DEFECT AND NONCOMPLIANCE RESPONSIBILITY AND REPORTS
0
1. The authority citation for part 573 continues to read as follows:
Authority: 49 U.S.C. 30102-103, 30112, 30117-121, 30166-167;
delegation of authority at 49 CFR 1.50.
0
2. Sections 573.3(b), (c), (d), and (e) are amended by revising the
phrase ``Sec. Sec. 573.5 and 573.6'' to read ``Sec. Sec. 573.6 and
573.7.''
0
3. Section 573.3(f) is amended by revising the references to ``Sec.
573.5'' and Sec. 573.6'' respectively to read ``Sec. 573.6'' and
``Sec. 573.7'' respectively.
PART 577--DEFECT AND NONCOMPLIANCE NOTIFICATION
0
4. The authority citation for part 577 continues to read as follows:
Authority: 49 U.S.C. 30102-103, 30112, 30117-121, 30166-167;
delegation of authority at 49 CFR 1.50.
Sec. 577.5 [Amended]
0
5. Section 577.5(a) is amended by revising the reference to ``Sec.
573.5(c)(9)'' to read ``Sec. 573.6(c)(9).''
Sec. 577.10 [Amended]
0
6. Section 577.10(a) is amended by revising the reference to ``Sec.
573.6'' to read ``Sec. 573.7.''
PART 579--REPORTING OF INFORMATION AND COMMUNICATIONS ABOUT
POTENTIAL DEFECTS
0
7. The authority citation for part 579 continues to read as follows:
Authority: Sec. 3, Pub. L. 106-414, 114 Stat. 1800 (49 U.S.C.
30102-103, 30112, 30117-121, 30166-167); delegation of authority at
49 CFR 1.50.
Subpart A--General
0
8. Section 579.4(c) is amended by revising the definitions of ``field
report, paragraph (2) of ``minimal specificity,'' the second sentence
of ``model year,'' ``rear-facing infant seat,'' ``seats,'' and adding
the definition of ``work product,'' to read as follows:
Sec. 579.4 Terminology.
* * * * *
(c) Other terms. * * *
* * * * *
Field report means a communication in writing, including
communications in electronic form, from an employee or representative
of a manufacturer of motor vehicles or motor vehicle equipment, with
respect to a vehicle or equipment that has been transported beyond the
direct control of the manufacturer, a dealer, an authorized service
facility of such manufacturer, or an entity known to the manufacturer
as owning or operating a fleet, to a manufacturer, regarding the
failure, malfunction, lack of durability, or other performance problem
of a motor vehicle or motor vehicle equipment, or any part thereof,
produced for sale by that manufacturer, regardless of whether verified
or assessed to be lacking in merit, but does not include a document
covered by the attorney'client privilege or the work product exclusion.
* * * * *
Minimal specificity means:
* * * * *
(2) For a child restraint system, the manufacturer and the model
(either the model name or model number), * * *
* * * * *
Model year * * * For equipment and tires, it means the year that
the item was produced.
* * * * *
Rear-facing infant seat means a child restraint system that is
designed to position a child to face only in the direction opposite to
the normal direction of travel of the motor vehicle.
Seats means all components of a motor vehicle that are subject to
FMVSS Nos. 202, 207, and 209, including all electrical and electronic
components within the seat that are related to seat positioning,
heating, and cooling. This term also includes all associated switches,
control units, connective elements (such as wiring harnesses, hoses,
piping, etc.), and mounting elements (such as brackets, fasteners,
etc.).
* * * * *
Work product means a document in the broad sense of the word,
prepared in anticipation of litigation where there is a reasonable
prospect of litigation and not for some other purpose such as a
business practice, and prepared or requested by an attorney or an agent
for an attorney.
0
9. Section 579.5(d) is revised to read as follows:
Sec. 579.5 Notices, bulletins, customer satisfaction campaigns,
consumer advisories, and other communications.
* * * * *
(d) Each copy shall be in readable form and shall be submitted not
later than five working days after the end of the month in which it is
issued. However, a document described in paragraph (b) of this section
and issued before April 1, 2003, need not be submitted.
Subpart C--Reporting of Early Warning Information
0
10. The first sentence of the introductory text of Sec. 579.21 is
revised to read as follows:
Sec. 579.21 Reporting requirements for manufacturers of 500 or more
light vehicles annually.
For each reporting period, a manufacturer whose aggregate number of
light vehicles manufactured for sale, sold, offered for sale,
introduced or delivered for introduction in interstate commerce, or
imported into the United States, during the calendar year of the
reporting period or during each of the prior two calendar years is 500
or more shall submit the information described in this section. * * *
0
11. The first sentence of the introductory text of Sec. 579.22 is
revised to read as follows:
Sec. 579.22 Reporting requirements for manufacturers of 500 or more
medium-heavy vehicles and buses annually.
For each reporting period, a manufacturer whose aggregate number of
medium-heavy vehicles and buses manufactured for sale, sold, offered
for sale, introduced or delivered for introduction in interstate
commerce, or imported into the United States, during the calendar year
of the reporting period or during either of the prior two calendar
years is 500 or more shall submit the information described in this
section. * * *
0
12. The first sentence of the introductory text of Sec. 579.23 is
revised to read as follows:
[[Page 18143]]
Sec. 579.23 Reporting requirements for manufacturers of 500 or more
motorcycles annually.
For each reporting period, a manufacturer whose aggregate number of
motorcycles manufactured for sale, sold, offered for sale, introduced
or delivered for introduction in interstate commerce, or imported into
the United States, during the calendar year of the reporting period or
during either of the prior two calendar years is 500 or more shall
submit the information described in this section. * * *
0
13. The first sentence of the introductory text of Sec. 579.24 is
revised to read as follows:
Sec. 579.24 Reporting requirements for manufacturers of 500 or more
trailers annually.
For each reporting period, a manufacturer whose aggregate number of
trailers manufactured for sale, sold, offered for sale, introduced or
delivered for introduction in interstate commerce, or imported into the
United States, during the calendar year of the reporting period or
during either of the prior two calendar years is 500 or more shall
submit the information described in this section. * * *
0
14. The first sentence of the introductory text of Sec. 579.25 is
revised to read as follows:
Sec. 579.25 Reporting requirements for manufacturers of child
restraint systems.
For each reporting period, a manufacturer who has manufactured for
sale, sold, offered for sale, introduced or delivered for introduction
in interstate commerce, or imported child restraint systems into the
United States, shall submit the information described in this section.
* * *
0
15. The first and second sentences of the introductory text of Sec.
579.26 are revised to read as follows:
Sec. 579.26 Reporting requirements for manufacturers of tires.
For each reporting period, a manufacturer (including a brand name
owner) who has manufactured for sale, sold, offered for sale,
introduced or delivered for introduction in interstate commerce, or
imported tires in the United States shall submit the information
described in this section. For paragraphs (a) and (c) of this section,
the manufacturer shall submit information separately with respect to
each tire line, size, SKU, plant where manufactured, and model year of
tire manufactured during the reporting period and the four calendar
years prior to the reporting period, including tire lines no longer in
production. * * *
0
16. Section 579.27(a) is revised to read as follows:
Sec. 579.27 Reporting requirements for manufacturers with respect to
vehicles not otherwise covered by this subpart, for manufacturers of
original equipment, and for manufacturers of replacement equipment
other than child restraint systems and tires.
(a) Applicability. This section applies to all manufacturers of
vehicles with respect to vehicles that are not covered by reports on
light vehicles, medium-heavy vehicles and buses, motorcycles, or
trailers submitted pursuant to Sec. Sec. 579.21 through 579.24 of this
part, to all manufacturers of original equipment, to all manufacturers
of replacement equipment other than manufacturers of tires and child
restraint systems, and to registered importers registered under 49
U.S.C. 30141(c).
* * * * *
0
17. Section 579.28(c) is revised to read as follows:
Sec. 579.28 Due date of reports and other miscellaneous provisions.
* * * * *
(c) One-time reporting of historical information. No later than
September 30, 2003:
(i) Each manufacturer of vehicles covered by Sec. Sec. 579.21
through 579.24 of this part shall file separate reports providing
information on the numbers of warranty claims recorded in the
manufacturer's warranty system, and field reports, that it received in
each calendar quarter from April 1, 2000, to March 31, 2003, for
vehicles manufactured in model years 1994 through 2003 (including any
vehicle designated as a 2004 model);
(ii) Each manufacturer of child restraint systems covered by Sec.
579.25 of this part shall file separate reports covering the numbers of
warranty claims recorded in the manufacturer's warranty system and
consumer complaints (added together), and field reports, that it
received in each calendar quarter from April 1, 2000, to March 31,
2003, for child restraint systems manufactured from April l, 1998 to
March 31, 2003, and
(iii) Each manufacturer of tires covered by Sec. 579.26 of this
part shall file separate reports covering the numbers of warranty
adjustments recorded in the manufacturer's warranty adjustment system
for tires that it received in each calendar quarter from April 1, 2000,
to March 31, 2003, for tires manufactured from April 1, 1998 to March
31, 2003.
(2) Each report filed under paragraph (c)(1) of this section shall
include production data, as specified in paragraph (a) of 579.21
through 579.26 of this part and shall identify the alleged system or
component covered by warranty claim, warranty adjustment, or field
report as specified in paragraph (c) of 579.21 through 579.26 of this
part.
* * * * *
Issued on: April 10, 2003.
Jeffrey W. Runge,
Administrator.
[FR Doc. 03-9199 Filed 4-10-03; 3:12 pm]
BILLING CODE 4910-59-P