[Federal Register: October 11, 2001 (Volume 66, Number 197)]
[Proposed Rules]
[Page 51907-51918]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc01-28]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 579
[Docket No. NHTSA 2001-10773; Notice 1]
RIN 2127-AI26
Reporting of Information About Foreign Safety Recalls
andCampaigns Related to Potential Defects
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document requests comments on a proposal to implement the
foreign safety recall and safety campaign reporting requirements of the
Transportation Recall Enhancement, Accountability, and Documentation
(TREAD) Act. Section 3(a) of the TREAD Act requires a manufacturer of
motor vehicles or motor vehicle equipment to report to the National
Highway Traffic Safety Administration (NHTSA) whenever it has decided
to conduct a safety recall or other safety campaign in a foreign
country covering vehicles or equipment that are identical or
substantially similar to vehicles or equipment offered for sale in the
United States. The manufacturer must also report whenever it has been
notified by a foreign government that a safety recall or safety
campaign must be conducted covering such vehicles or equipment.
DATES: Comment closing date: Comments must be received on or before
December 10, 2001. The effective date of a final rule based on this
proposal would be 30 days after publication of the final rule.
ADDRESSES: All comments on this notice should refer to the docket and
notice number set forth above and be submitted to Docket Management,
Room PL-401, 400 Seventh Street, S.W., Washington, DC 20590. The docket
room hours are from 9:30 a.m. to 5:00 p.m., Monday through Friday.
FOR FURTHER INFORMATION CONTACT: For non-legal issues, contact Jon
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
A. Ford's Foreign Campaigns Involving Firestone Tires
On May 2, 2000, NHTSA's Office of Defects Investigation (ODI)
opened an investigation into an alleged safety defect in ATX and
Wilderness tires manufactured by Bridgestone/Firestone, Inc.
(Firestone). Many of these tires had been manufactured for use as
original equipment on Ford Explorer sport utility vehicles.
During that investigation, ODI became aware that in August 1999,
Ford Motor Company (Ford) commenced an ``Owner Notification Program''
in which it offered to replace the P255/70R16 Firestone Wilderness AT
tires installed as original equipment on its model year (MY) 1995 and
1996 Ford Explorer and Mercury Mountaineer models in use in the Persian
Gulf region. In its letter to owners, Ford explained that it was
offering to replace the tires because ``Firestone `Wilderness A/T'
brand tires may experience interior tire degradation and tread
separation, due to unique Gulf Coast usage patterns and environmental
conditions, resulting in a loss of vehicle control.'' Ford did not
notify NHTSA that it was taking this action, because, as it explained
later, there was no regulation requiring it to do so.
Similarly, late in February 2000, Ford launched an ``Owner
Notification Program'' in Malaysia and Thailand covering ``certain 1997
Explorers equipped with P235/75R15 Firestone `All Terrain' Brand
Tires'' (Wilderness AT tires). In its letter to owners, Ford claimed it
was offering to replace the tires because they ``may experience
interior degradation and tread separation, due to unique regional usage
patterns and environmental conditions, potentially resulting in a loss
of vehicle control.'' As in the case of the Gulf Region vehicles, Ford
did not notify NHTSA that it had taken this action until after the
agency had opened its investigation covering these tires.
Also, on May 20, 2000, Ford began an ``Owner Notification Program''
in Venezuela covering MY 1996 through 1999 Explorers equipped with
P235/75R15 or P255/70R16 Firestone tires. In its letter to owners, Ford
included the same rationale as in the Malaysia/Thailand action. Again,
Ford did not notify NHTSA of this action until after it was commenced.
B. Federal Defect Reporting Requirements Before the TREAD Act
Title 49, United States Code, Chapter 301, ``Motor Vehicle
Safety,'' is the basic motor vehicle safety statute administered by
NHTSA (the ``Safety
[[Page 51908]]
Act''). It establishes requirements that manufacturers of motor
vehicles and motor vehicle equipment built or sold in the United States
(and other persons) must meet.
Under 49 U.S.C. 30118(c)(1), a manufacturer of motor vehicle or
replacement equipment must notify NHTSA if the manufacturer ``learns
the vehicle or equipment contains a defect and decides in good faith
that the defect relates to motor vehicle safety.'' This means that when
a manufacturer learns of a defect, the manufacturer must make a good
faith decision whether or not the defect is related to motor vehicle
safety, and, if the decision is affirmative, to report the defect to
NHTSA. Similarly, under Section 30118(c)(2), when the manufacturer
decides in good faith that a vehicle or equipment item does not comply
with an applicable Federal motor safety standard, it must report the
noncompliance to NHTSA. The precursor to Section 30118(c), which
contained substantially similar language, has been held to impose upon
a manufacturer the duty ``to notify and remedy whether it actually
determined, or it should have determined, that its [products] are
defective and the defect is safety-related.'' United States v. General
Motors Corp. (X-Cars), 656 F. Supp. 1555, 1559 n.5 (D.D.C. 1987),
affirmed, 841 F. 2d. 400 (D.C. Cir. 1988), citing United States v.
General Motors Corp., 574 F. Supp. 1047, 1050 (D.D.C. 1983).
Ford has stated that it did not tell us of the campaigns in other
countries referred to above because it did not believe that it was
required to. Until the TREAD Act, a manufacturer's self-reporting
obligations, other than defect and noncompliance notifications,
generally were established by 49 U.S.C. 30166(f), Providing copies of
communications about defects and noncompliance, as implemented by 49
CFR 573.8, Notices, bulletins, and other communications. Section
30166(f) provides that:
A manufacturer shall give [NHTSA] a true or representative copy
of each communication to the manufacturer's dealers or to owners or
purchasers of a motor vehicle or replacement equipment produced by
the manufacturer about a defect or noncompliance with a motor
vehicle safety standard * * * in a vehicle or equipment that is sold
or serviced.
To implement Section 30166(f), NHTSA adopted 49 CFR 573.8, which
specifies that:
Each manufacturer shall furnish to the NHTSA a copy of all
notices, bulletins, and other communications (including those
transmitted by computer, telefax or other electronic means, and
including warranty and policy extension communiques and product
improvement bulletins), other than those required to be submitted by
Sec. 573.5(c)(9), sent to more than one manufacturer, distributor,
dealer, lessor, lessee, or purchaser, regarding any defect in its
vehicles or items of equipment (including any failure or malfunction
beyond normal deterioration in use, or any failure of performance,
or flaw or unintended deviation from design specifications), whether
or not such defect is safety related. Copies shall be in readable
form and shall be submitted monthly, not more than five (5) working
days after the end of each month.\1\
\1\ The notices, bulletins, and other communications required to
be submitted by Sec. 573.5(c)(9), which Sec. 573.8 excludes, are
those that relate directly to a noncompliance or a safety-related
defect that a manufacturer has determined to exist and has reported
to NHTSA.
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This regulation does not specifically address manufacturer
communications about defects occurring in vehicles and equipment in use
outside the United States.
C. The TREAD Act (P.L. 106-414).
The Transportation Recall Enhancement, Accountability, and
Documentation (TREAD) Act (Pub. L. 106-414) was enacted on November 1,
2000. An underlying House Report (H. Rpt. 106-954) observed, at p. 7:
First, it is clear that the data available to NHTSA regarding
the problems with the Firestone tires was insufficient. While
testimony showed that the agency had received some complaints about
the tires, both from consumers and from an automobile insurance
company, they did not receive data about Ford's foreign recall
actions * * * The Committee believes that the provisions of this
legislation are an initial step toward correcting these problems.
The remedial provisions of the legislation that the Committee
referred to became Section 3(a) of the TREAD Act. Section 3(a) amended
49 U.S.C. 30166 to add a new subsection (l) which reads as follows:
(l) REPORTING OF DEFECTS IN MOTOR VEHICLES AND PRODUCTS IN
FOREIGN COUNTRIES--
(1) REPORTING OF DEFECTS, MANUFACTURER DETERMINATION.--Not later
than 5 working days after determining to conduct a safety recall or
other safety campaign in a foreign country on a motor vehicle or
motor vehicle equipment that is identical or substantially similar
to a motor vehicle or motor vehicle equipment offered for sale in
the United States, the manufacturer shall report the determination
to the Secretary.
(2) REPORTING OF DEFECTS, FOREIGN GOVERNMENT DETERMINATION--Not
later than 5 working days after receiving notification that the
government of a foreign country has determined that a safety recall
or other safety campaign must be conducted in the foreign country on
a motor vehicle or motor vehicle equipment that is identical or
substantially similar to a motor vehicle or motor vehicle equipment
offered for sale in the United States, the manufacturer shall report
the determination to the Secretary.
(3) REPORTING REQUIREMENTS.--The Secretary shall prescribe the
contents of the notification required by this subsection.
The obligation to report under the first two paragraphs above was
effective on the day that the TREAD Act was signed into law, November
1, 2000. Since that date, NHTSA has, in fact, received some
notifications of foreign safety campaigns being conducted by vehicle
and equipment manufacturers. The content, format, and scope of these
reports have varied, which supports the need for a regulation that
defines and standardizes the information provided, as required by the
third subparagraph. For example, Ford is conducting a ``field action''
in Thailand, Malaysia, and Fiji to replace faulty brake caliper bodies
on certain Mazda Fighter and Ford Ranger J97 vehicles. Ford advises
that ``This model is not marketed in the United States.'' This leaves
unanswered the question whether the model is substantially similar to
one marketed in the United States, or whether the brake caliper bodies
are identical or substantially similar to brake caliper bodies on Ford/
Mazda vehicles that are sold in the United States. Firestone is
conducting a ``Customer Satisfaction Program'' in the Middle East
covering certain tires manufactured in its Wilson, North Carolina plant
that were original equipment on 589 vehicles manufactured by Ford,
specifically model year 1998 and 1999 Ford Taurus and Mercury Sable
sedans and station wagons. Its letter to us does not state whether
similar tires were used on vehicles in the United States.
Because manufacturers have been required to report determinations
of foreign campaigns to us since November 1, 2000, regardless whether
NHTSA has prescribed the contents of the notification, we are proposing
that manufacturers provide us with reports of all relevant
determinations between November 1, 2000, and the effective date of the
final rule. This would assure that we receive information on recalls
and campaigns that include the information specified in the final rule,
pertaining to substantially similar vehicles and equipment within the
meaning specified in the final rule. Reports would be due within 30
days of the effective date of the final rule. However, the requirement
would not require resubmission of information pertaining to foreign
campaigns that a manufacturer had reported to NHTSA between November 1,
2000, and the effective date of the final rule.
We note that in Section 3(b) of the TREAD Act, Congress adopted
[[Page 51909]]
provisions requiring manufacturers of vehicles and equipment to submit
a wide variety of information to NHTSA that could provide an ``early
warning'' of defects or noncompliances in their products (49 U.S.C.
30166(m)). NHTSA issued an Advance Notice of Proposed Rulemaking
(ANPRM) on January 22, 2001 (66 FR 6532) regarding these ``early
warning'' provisions. Because some of the terms and elements of those
requirements are applicable or relevant to Section 30166(l), we have
considered the comments submitted in response to that ANPRM in
developing this notice.
II. Scope and Terms
A. Manufacturer
As defined before the enactment of the TREAD Act, a manufacturer is
``a person manufacturing or assembling motor vehicles or motor vehicle
equipment, or importing motor vehicles or motor vehicle equipment for
resale.'' 49 U.S.C. 30102(a)(5). The Safety Act requires foreign
manufacturers offering vehicles or vehicle equipment for import to
designate an agent on whom service may be made (49 U.S.C. 30164).
In its defect and noncompliance reporting regulations, the agency
has addressed the question of who may file a defect or noncompliance
report related to an imported item. Under 49 CFR 573.3(b), in the case
of vehicles or equipment imported into the United States, a defect or
noncompliance report may be filed by either the fabricating
manufacturer or the importer of the vehicle or equipment. Defect and
noncompliance reports covering vehicles manufactured outside of the
United States have generally been submitted by the importer of the
vehicles, which is usually a subsidiary of a foreign parent corporation
(e.g., defects in vehicles made in Japan by Honda Motor Co. Ltd. were
reported by American Honda Motor Co., Inc., even if the vehicle was
certified by Honda Motor Co. Ltd).
At the time that the TREAD Act was under consideration in the
Congress, the Alliance of Automobile Manufacturers (the Alliance),
whose members are BMW, DaimlerChrysler, Fiat, Ford, General Motors,
Isuzu, Mazda, Mitsubishi, Nissan, Porsche, Toyota, Volvo and
Volkswagen, noted that information about safety recalls that are
conducted in foreign countries on automobiles or items of automotive
equipment that are also offered for sale in the United States would be
useful to NHTSA. The Alliance stated on behalf of its members that they
will voluntarily report to NHTSA their safety recalls and other safety
campaigns that are conducted in a foreign country on a vehicle or
component part that is also offered for sale in the United States. See
letter from Josephine Cooper to NHTSA Administrator Sue Bailey, dated
September 15, 2000, which has been placed in the docket.
Notwithstanding this voluntary action, Congress imposed mandatory
reporting requirements in Section 30166(l).
It is clear on its face that Section 30166(l) has extraterritorial
effect. In its comments on the early warning ANPRM, the Alliance
recognized that the TREAD Act was clearly written by Congress to apply
to persons and activities outside of the United States, and it is
therefore a clear assertion of extraterritorial jurisdiction by the
United States (Alliance comment, Attachment 10, p. 9). The Alliance
went on to state that the early warning rule could reasonably require
reports from foreign companies manufacturing vehicles for sale in the
United States as long as the required reports relate to issues that
could arise in those vehicles (p. 11).
This leaves the question of who must and who may report. In view of
the definition of manufacturer and in further view of the specific
provisions of Section 30166(l), we believe that the agency has
authority to require a report (1) from the foreign entity that has
received notice from or provided notice to a foreign government; (2)
from the fabricating manufacturer; and (3) from the importer of the
identical or substantially similar vehicle or equipment. However, we
are proposing to apply the reporting requirements for foreign campaigns
in the same manner as we currently utilize for reporting noncompliance
and defect determinations to NHTSA under Part 573. Thus, under today's
proposal, the report may be filed by either the fabricating
manufacturer or by the importer of the vehicle (see section 573.3(b)).
A multinational corporation must ensure that all relevant campaign
information throughout the world is made available to whatever entity
makes those reports so that its designated entity timely provides the
information to NHTSA. Thus, it would be a violation of law for a
foreign fabricating manufacturer to designate its U.S. importer as its
reporting entity, and then fail to assure that it is provided with
information about relevant foreign recalls and campaigns. All
manufacturers will have to adopt and implement practices to assure the
proper flow of information regarding relevant foreign recalls and
campaigns.
B. Safety Recall or Other Safety Campaign
1. Determination by a Manufacturer (Section 30166(l)(1))
This paragraph requires that a manufacturer of motor vehicles or
motor vehicle equipment report to us when it has decided to conduct ``a
safety recall or other safety campaign'' outside the United States that
involves vehicles or equipment that are identical or substantially
similar to products sold in the United States. Neither 49 U.S.C. 30102
nor the TREAD Act defines ``safety recall or other safety campaign.''
Further, NHTSA does not have comprehensive information about the laws
of jurisdictions outside the United States relating to recalls of motor
vehicles and motor vehicle equipment, and thus does not have detailed
knowledge of the terminology or specific practices used in foreign
countries to address potential safety problems. For example, some
countries may not differentiate defects from noncompliances with safety
standards or with safety guidelines. Accordingly, we cannot presume
that a procedure abroad will follow that specified in 49 U.S.C. 30118-
30120, e.g., a notification to a government agency within 5 days after
the manufacturer determines that its product contains a safety-related
defect or noncompliance, followed by notification to owners,
purchasers, and dealers containing an offer to remedy through repair,
repurchase, or replacement.
In the United States, the elements of a ``safety recall'' are
established by 49 U.S.C. 30118-30120. In general, these elements are
(1) a determination by a manufacturer of motor vehicles or motor
vehicle equipment, or by NHTSA, that a safety-related defect or
noncompliance exists, (2) notification by the manufacturer to NHTSA
within a reasonable time (defined in 49 CFR 573.5(b) to be within 5
business days of its determination), and (3) notification by the
manufacturer to owners, purchasers, and dealers advising of the
determination and potential safety consequences, and offering a free
remedy.
We propose to characterize a ``safety recall'' abroad as involving
a determination by a manufacturer or one of its affiliates or
subsidiaries (or a foreign government) that there is a problem with
specific motor vehicles or motor vehicle equipment that relates to
motor vehicle safety (e.g., a defect or noncompliance with a local
safety standard or governmental guideline), followed by an offer by the
manufacturer to provide remedial
[[Page 51910]]
action. The offer could be made either by notifying the owner directly
or through notifying dealers, who would then contact owners. Such
safety recalls would have to be reported, whether or not the problem at
issue would constitute a safety-related defect or noncompliance under
U.S. law.
The TREAD Act also does not define ``other safety campaign.'' We
would distinguish an ``other safety campaign'' from a ``safety recall''
in two ways. First, a manufacturer would not necessarily make any
acknowledgement, express or otherwise, that a safety problem existed.
Second, the ``campaign'' would not necessarily involve the provision of
a remedy. It could include such actions as an extended warranty or
simply a warning to owners or dealers about a possible problem that
could relate to safety. It would not include ad hoc good will repairs
or replacements by local dealers for individual owners. Thus, a
``safety campaign'' would be defined as an action in which a
manufacturer communicates with owners and/or dealers with respect to
conditions under which a vehicle or equipment item should be operated,
repaired, or replaced, that relate to safety. As used above, the words
``relate to'' would have the same broad meaning they do in 49 U.S.C.
30118(b) and (c). See, e.g., Morales v. Trans World Airlines, Inc., 504
U.S.C. 374, 383 (1992).
2. Determination by a Foreign Government (Section 30166(l)(2))
We are proposing that a manufacturer be required to report to NHTSA
whenever it has been notified that the government of a foreign country
(which includes a political subdivision of such a country), has
determined that it should or must conduct a safety recall or other
safety campaign involving covered vehicles or equipment, whether or not
the subject of the campaign would be a safety-related defect or
noncompliance under U.S. law. For example, if the foreign government
moves to prohibit further sales of a vehicle for reasons relating to
motor vehicle safety, we would consider that action to be the
equivalent of a ``safety recall.''
There may be occasions when the manufacturer will contest the
foreign government's action. In the United States, NHTSA may make an
initial decision that a defect or noncompliance exists, affording the
manufacturer and public an opportunity to present data, views and
arguments. Then NHTSA may make a final decision that a defect or
noncompliance exists and order a recall (49 U.S.C. 30118). NHTSA may
also order a manufacturer to provide a provisional notification if a
civil action has been brought by NHTSA under 49 U.S.C. 30163 if the
manufacturer fails to follow NHTSA's order to recall (49 U.S.C. 30121).
We are not fully conversant with the administrative practices of
countries other than the United States, but we include in
``determination'' any determination by a foreign government that a
safety recall or other safety campaign should be conducted, regardless
of whether the determination is final, initial, or conditional.
We are interested in receiving comments on the vehicle and
equipment safety recall laws and practices of countries other than the
United States as they relate to implementation of Section 30166(l)(2).
3. Exceptions for Identical Recalls or Campaigns Conducted in the
United States
We recognize that manufacturers may conduct identical recalls in
the U.S. and abroad. If a manufacturer is conducting a safety recall
abroad, or has been ordered by a foreign government to conduct a safety
recall, it would not be required to report such a recall to NHTSA if it
has filed a Part 573 report covering the same safety defect in
substantially similar products offered for sale or in use in the United
States, provided that the manufacturer's remedy in the foreign recall
is identical to that provided in the U.S. recall, and the scope of the
foreign recall is not broader than the U.S. recall.
C. Identical or Substantially Similar Motor Vehicles or Motor Vehicle
Equipment
The obligation to report foreign campaigns to NHTSA applies to
recalls and campaigns involving vehicles or equipment items that are
``identical or substantially similar to a motor vehicle or motor
vehicle equipment offered for sale in the United States.'' A parallel
reporting obligation also exists under the early warning reporting
provisions (Section 30166(m)(3)(C)), under which manufacturers of
vehicles or equipment must report:
all incidents of which the manufacturer receives actual notice which
involve fatalities or serious injuries which are alleged or proven
to have been caused by a possible defect in such manufacturer's
motor vehicle or motor vehicle equipment * * * in a foreign country
when the possible defect is in a motor vehicle or motor vehicle
equipment that is identical or substantially similar to a motor
vehicle or motor vehicle equipment offered for sale in the United
States.
In response to the ANPRM on the early warning reporting
requirements, we received comments on the meaning and scope of this
phrase. These include comments from the Automotive Occupant Restraint
Council (the Council), TRW Automotive (TRW), Truck Manufacturers
Association (TMA), Volvo of North America, Inc. (Volvo), ArvinMeritor
USA, International Truck and Engine Corporation (International Truck),
Mack Truck, Breed Technologies (Breed), DaimlerChrysler Corporation,
Harley-Davidson Motor Corporation, Nissan North America (Nissan), the
Truck Trailer Manufacturers Association, the law firm of Arent Fox on
behalf of the Motor and Equipment Manufacturers Association and the
Original Equipment Suppliers Association (the Associations), Delphi
Automotive Systems (Delphi), Ford, Osram Sylvania, AmSafe, and the
Alliance.
1. The Meaning of Identical
The TREAD Act early warning ANPRM asked:
``1. Is the word `identical' understood internationally, or do we
need to define it? If so, how?''
There was a wide range of comments, some of which took a narrow
view. In TRW's opinion, the word ``identical'' is probably not
understood internationally, ``or even nationally.'' A possible
definition could be ``the exact same design or part number used in
different applications.'' ArvinMeritor finds the word ``identical'' to
be ambiguous when applied to foreign products. A part may appear to be
identical but differ in significant ways. For example, manufacturers
may make subtle design variations to meet regional specifications,
applications, or exposure requirements. Constituent components are
frequently sourced from local suppliers and while they may appear
identical, they may vary ``somewhat in certain characteristics.'' This
commenter prefers to describe ``near-like components as `substantially
similar' and leave the distinction of defining which components are
`substantially similar' to the judgment of the manufacturer.''
International Truck cautions that ``to the extent the term `identical'
may be of use, it should not be applied to vehicles, but should be
limited to specific components manufactured by the same entity.'' Breed
argues that the focus should not be on ``identical or substantially
similar vehicles or equipment, but rather on identical or substantially
similar defects'' (emphasis in original). Alliance submits that
``identical'' is understood and does not have to be defined for
[[Page 51911]]
TREAD Act rulemaking purposes. Delphi believes that the word must be
understood in the context in which it is used. It noted that two bolts
could have the identical part number but be used in different
applications of lesser and greater safety consequence.
After reviewing these comments, NHTSA has decided to propose a rule
that does not contain a separate definition of ``identical,'' because
we believe that one is not needed. If there were good faith doubts
whether a vehicle or equipment item is exactly ``identical'' to one
that is sold in the United States, it is likely that the vehicle or
equipment would be ``substantially similar'' to the U.S. vehicle or
equipment, and therefore be covered by the reporting requirement in any
case.
2. Substantially Similar Motor Vehicles
The phrase ``substantially similar'' also appears in 49 U.S.C.
30141(a)(1)(A), which was added to the Safety Act by the Imported
Vehicle Safety Compliance Act of 1988. This section provides that a
Registered Importer (RI) may import a motor vehicle not originally
manufactured to comply with the Federal motor vehicle safety standards
(FMVSS) if NHTSA decides that the vehicle is ``substantially similar to
a motor vehicle of the same model year that was certified for sale in
the United States.'' \2\ Except for vehicles of Canadian origin, which
the agency decided were substantially similar to American counterparts,
virtually all these decisions have been made pursuant to petitions by
RIs. A list of non-U.S.-certified vehicles that are eligible for
importation under this program is published as an appendix following 49
CFR part 593, and is updated each fiscal year to reflect additional
eligibility decisions. We have not found it necessary to define
``substantially similar'' under Section 30141 because an eligible
foreign vehicle must have as an analogue ``a motor vehicle of the same
model year that was certified for sale in the United States.'' Thus,
the ``substantially similar'' foreign vehicles on the Part 593 list are
easily identifiable without the need for a definition.
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\2\ The agency must also decide that the vehicle is capable of
being readily altered to comply with all applicable FMVSS. This
authority extends only to motor vehicles and not to motor vehicle
equipment.
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We have tentatively decided that any vehicle model that appears in
the Part 593 list would be ``substantially similar'' to a U.S. vehicle
for purposes of Sections 30166(l) and (m). However, there are
limitations to the usefulness of this list with reference to
implementation of the foreign defect and early warning reporting
requirements. The list does not constitute the entire universe of
``substantially similar'' motor vehicles subject to these requirements
because it includes only vehicles for which eligibility petitions have
been filed and granted. Thus, we need to develop a definition of the
term ``substantially similar'' that is not wholly dependent on whether
a RI has sought to import a particular vehicle.
From an operational perspective, we believe that the TREAD Act
requirements warrant the development of a definition of ``substantially
similar'' that would apply to the foreign recall and campaign
requirements as well as the foreign early warning reporting
requirements.
In the early warning ANPRM, we asked:
``2. How should a manufacturer determine if a vehicle sold in a
foreign country is `substantially similar' to vehicles sold in the
United States? Is it enough that the vehicles share the same platform
and/or engine family? If not, why not?''
Some manufacturers producing vehicles for sale domestically
indicated that that there was little or no difference in the vehicles
that they produce for sale abroad. Harley-Davidson said that it ``sells
substantially the same product lines in every nation in which it does
business,'' leaving unsaid what, if any, features are changed to comply
with local laws or customer tastes. DaimlerChrysler said that most of
its vehicles sold abroad ``are substantially similar to vehicles sold
in the United States (with some exceptions).'' No other vehicle
manufacturer asserted that the vehicles it produces in the United
States for sale abroad are not substantially similar to models it
produces and sells in the United States. These comments indicate that,
in general, vehicles manufactured in the United States for sale abroad
are likely to be substantially similar to vehicles manufactured and
sold domestically.
We asked if it would be appropriate to consider vehicles
``substantially similar'' if they shared the same platform and/or
engine family. Nissan thought it more accurate to say that a
substantially similar motor vehicle is ``a motor vehicle in substantial
compliance with the federal safety standards that has the same platform
and body shell, same engine displacement, and an engine within the same
engine family.'' It believes that this definition is consistent with
the agency's determinations in the admission of gray market vehicles
where ``decisions turn on whether the petitioner can demonstrate that
the foreign vehicle is substantially similar to its U.S. counterpart in
the way that the two vehicles comply with the federal safety
standards.'' However, this is not an accurate statement of the Part 593
determination process. The issue before NHTSA in that context is
whether a candidate vehicle ``is capable of being readily altered to
comply'' with the FMVSS (Section 30141(a)(1)(A)(iv)). Precisely because
the candidate vehicle does not comply with the FMVSS, we cannot say
that it is ``substantially similar to its U.S. counterpart in the way
that [it complies].'' Further, we believe that the phrase ``in
substantial compliance with the federal safety standards'' is too vague
to be used for definitional purposes. Finally, the agency considers
``same engine displacement'' to be too restrictive, in that some
foreign models are essentially identical to their U.S. counterparts in
all relevant respects other than engine family and displacement.
The Alliance stated that the Part 593 list provides a ``useful
starting point.'' The Alliance further suggested that important
criteria for a ``substantially similar'' determination would be ``same
platform and body shell, same engine family, same engine displacement,
compliance'' or ``substantial compliance'' with ``specified FMVSS
requirements such as S105/135, 203/204, 208 (except the automatic
protection provisions), 209, 214, and 301.'' We note again our view
that the phrase ``substantial compliance'' with the FMVSS is too vague
and too subjective to serve as a definitional criterion, and that
requiring the same engine family and displacement would be too
restrictive.
The Alliance also recommended that each vehicle manufacturer submit
to NHTSA annually, at the beginning of each model year, a list of the
vehicles that the manufacturer intends to sell abroad that the
manufacturer has determined are ``substantially similar'' to a vehicle
certified for sale in the United States. Ford concurred with this
recommendation. We have reviewed this suggestion and believe that it
has merit, in that it could help both manufacturers and NHTSA in
determining whether foreign recalls and other campaigns need to be
reported. We note, however, that to the extent that such a list is
based on whether vehicles use a common platform, as advanced by the
Alliance, such a list would not be determinative, since our proposed
criteria would go beyond common platforms. However, we are proposing
[[Page 51912]]
that manufacturers identify not later than each November 1 of each year
any vehicles they sell abroad, or plan to sell abroad, in the next year
that they believe to be substantially similar to vehicles sold or
offered for sale in the United States or planned for sale in the U.S.
during the next year.
Several commenters believe that NHTSA should take a different
approach with respect to medium and heavy duty trucks from that applied
to lighter vehicles.\3\ TMA stated that medium and heavy duty truck
manufacturers produce highly customized products for which buyers ``can
specify nearly every major component on the vehicle.'' These
manufacturers are ``assemblers and systems integrators,'' employing the
components specified by the end user, whether the end user is in the
United States or a foreign country. Under this view, unless they are
part of a fleet order, medium and heavy duty trucks sold in the U.S.
and in foreign countries might rarely be identical or substantially
similar to each other. While the TMA was of the view that generally
trucks would not be substantially similar, it expected reporting of
foreign recalls involving components substantially similar to those in
the U.S. Volvo said that ``rarely will there be a large group of heavy
trucks that are substantially similar in every way.'' We believe that
these comments miss the point, since the statute is designed to provide
a broad range of relevant information to NHTSA not just information
about vehicles that are ``substantially similar in every way.''
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\3\ These commenters did not explain what they mean by ``heavy
truck.'' The truck industry has adopted terminology of Classes
numbered 1 through 8 that distinguish vehicles of different gross
vehicle weight ratings (GVWRs). NHTSA has never adopted this
terminology for regulatory purposes but does use GVWR (expressed in
either kg or lbs, depending on the FMVSS) to establish differing
requirements within some of the FMVSS. For example, Standard No. 105
does not apply to vehicles with a GVWR of 3,500 kg or more. Standard
No. 121 does not apply to trailers with a GVWR of more than 120,000
lbs. Standard No. 201 does not apply to buses with a GVWR or more
than 3,860 kg. Standard No. 208 establishes different requirements
for vehicles with a GVWR between 8,500 and 10,000 lbs.
---------------------------------------------------------------------------
Volvo and others also made similarly restrictive arguments about
regulatory environment and parts application. Volvo argued that,
``while the heavy trucks in each country may have similar parts, the
application of the parts in the differing regulatory environments make
comparison particularly complex and potentially misleading.'' In
Europe, according to Volvo, the regulatory scheme for brakes on heavy
trucks ``focuses on the balance across the vehicle when braking,''
while NHTSA focuses on stopping distance. ArvinMeritor noted that ``a
certain type and model of brake may be used through a variety of
vehicle models,'' and, for heavy trucks, the ``component may be used
through a range of vehicle ratings and chassis models.'' However,
ArvinMeritor warned that ``a component may share some attributes that
make it ``substantially similar to a [sic] one family of parts but have
other attributes that would make it `substantially dissimilar' from
that same family.'' It used as an example a heavy duty foundation brake
used with a standard brake drum up to a prescribed axle weight rating
or application severity, `at which a heavier brake drum may be
recommended.' In this instance, `the foundation brake would remain
`substantially similar' throughout the range of use whereas the
associated brake drums would be `substantially dissimilar' though they
could be installed on similarly-appearing vehicles.' Mack Truck pointed
out that ``vehicles sold in foreign countries often incorporate systems
or components of local origin which are not comparable to components or
systems incorporated in the manufacturer's vehicles sold in the United
States and Canada.''
After our review of the comments in response to the ANPRM and our
own assessment, we are proposing that a vehicle sold or operated in a
foreign country would be viewed as ``substantially similar'' to one
offered for sale in the United States if it meets one or more of a
number of tests. To begin, we are proposing to consider all motor
vehicles manufactured to comply with the Canadian Motor Vehicle Safety
Standards, and all motor vehicles determined to be eligible for
importation pursuant to 49 CFR part 593, as ``substantially similar''
(if not identical) to motor vehicles sold in the United States. As for
vehicles not so identified, we are further proposing that all vehicles
manufactured in the United States for sale in other countries be
considered as substantially similar (if not identical). This
presupposes that some modifications are made to comply with foreign
standards or for other purposes. The Ford Explorers manufactured in the
U.S. and sold in Saudi Arabia would be an example. In addition, we
would include vehicles assembled in foreign countries that are
counterparts of United States models. An example would be Ford
Explorers assembled outside the United States, such as those assembled
in Venezuela. We would appreciate comments on whether this latter class
of vehicles needs to be defined with greater specificity. We caution
commenters that in our view the term ``substantially similar'' sweeps
with a broad brush and is not to be defeated by persons bent on finding
or inventing distinctions to evade reporting.
As a practical matter, the vehicles remaining are those that have
been manufactured outside the United States but which do not appear on
the part 593 eligibility list. These remaining vehicles sold outside
the U.S. may or may not be substantially similar to those sold in the
U.S. With respect to recalls or campaigns covering these vehicles, we
begin with the premise that, although the vehicle is usually the
subject of a recall or safety campaign, the vehicle in its entirety is
not defective; instead, a vehicle will be recalled because of a defect
or problem in one or more of its components or systems that may or may
not be used in other vehicles built by the manufacturer.
This raises two related questions: (1) Whether we should require a
manufacturer to report a foreign campaign involving a vehicle generally
substantially similar to one offered for sale in the United States if
the defective component or system is different (e.g., substantially
dissimilar in design or manufacture) from the component or system used
on or installed in the vehicles sold in the U.S.; and (2) whether we
should require a manufacturer to report a foreign campaign in which the
defective component or system is substantially similar to the component
or system the manufacturer used on a vehicle sold in the U.S., but the
vehicle itself is on a different platform or would not otherwise be
considered similar.
[[Page 51913]]
We have tentatively decided not to require reporting under the
first situation because the vehicles are not substantially similar in a
material respect that is relevant to section 30166(l); i.e., the defect
is unlikely to exist or occur in a vehicle manufactured for or sold in
the U.S. market if it does not have the problematic component or system
used in vehicles covered by a foreign campaign. We have tentatively
decided to require reporting under the second situation because the
defect may exist or occur in a vehicle manufactured for or sold in the
U.S. market, even if such a vehicle were built on a different platform.
For example, assume that a seat belt buckle assembly, used in many
models of vehicles, cracks and will not hold under force. Assume that a
manufacturer recalls a small vehicle on a platform not sold in the
United States that contains the buckle. Under today's proposal, if an
identical or substantially similar buckle assembly is used on a vehicle
built by that manufacturer that was or is offered for sale in the
United States, the manufacturer of the vehicle would have to report the
campaign to NHTSA.
We are aware that some manufacturers have argued that, in view of
vehicle integration issues, a defective component or system on a
foreign vehicle may not be defective if installed on a different
vehicle platform sold in the United States. For example, it has been
argued that a system on a United States model would encounter a less
demanding operating environment than in some foreign countries. This is
not dispositive. A report of a foreign recall or campaign is not
equivalent to an admission that a safety defect exists in the U.S. or
that a recall is needed in this country. Rather, the purpose of the
report is to allow NHTSA to consider it, often along with other
information, in deciding whether to open a defect investigation. The
manufacturer could indicate in a communication to the agency the
reasons why it believes that the problem covered by the foreign
campaign is unlikely to occur in the United States.
In view of the above concerns, we are proposing an additional
alternative test of whether a vehicle is substantially similar for
reporting purposes. We would deem foreign and U.S. motor vehicles as
``substantially similar'' for reporting purposes if they both contain
the component or system that gave rise or contributed to a safety
recall or other safety campaign in a foreign country, without regard to
the vehicle platform on which the components or systems are installed.
Moreover, the fact that part numbers may be different in the U.S. and
in foreign countries or on different models would not be dispositive of
whether parts are identical. In addition, we specifically request
comment on a formulation based on the concept that the foreign and U.S.
vehicles would be substantially similar for reporting under section
30166(l) if they shared a platform and/or a body shell.
We request comments on the appropriate formulation of test(s) for
substantially similar motor vehicles and, depending on the comments,
may make adjustments to the criteria for characterizing a vehicle as
substantially similar.
3. Substantially Similar Motor Vehicle Equipment
Section 30166(l) also requires reports of foreign recalls and
safety campaigns pertaining to motor vehicle equipment. Motor vehicle
equipment comprises two categories: original equipment and replacement
equipment. ``Motor vehicle equipment'' is defined by 49 U.S.C.
30102(a)(7). For purposes of the defect and noncompliance provisions of
the Safety Act, the terms ``original equipment'' and ``replacement
equipment'' are defined in 49 U.S.C. 30102(b)(1)(C) and (D). Pursuant
to 49 U.S.C. 30102(b)(2), NHTSA has the authority to prescribe
regulations changing the relevant definitions in section 30102(b)(1).
The agency has implemented this authority in 49 CFR 579.4(a) and (b).
Sec. 579.4(a) defines ``original equipment'' as ``an item of motor
vehicle equipment (other than a tire) which was installed in or on a
motor vehicle at the time of its delivery to the first purchaser if--
(1) The item of equipment was installed on or in the motor vehicle
at the time of its delivery to a dealer or distributor for
distribution; or
(2) The item of equipment was installed by the dealer or
distributor with the express authorization of the motor vehicle
manufacturer.''
Sec. 579.4(b) defines replacement equipment as:
``(1) Motor vehicle equipment other than original equipment as
defined in [Sec. 579.4(a)]; and
(2) Tires.''
Recalls and other safety campaigns involving problems with original
equipment (OE) components or systems abroad, as here in the U.S., are
likely to be conducted by the manufacturer of the vehicle in which they
were installed (although under certain circumstances an OE manufacturer
is required to notify NHTSA of the defect. See 49 CFR 573.5(e) and
(f)). Nevertheless, in those instances in which an OE manufacturer
decides to conduct a recall or safety campaign, it would have the duty
to report that campaign to us. Similarly, if a foreign government
notified an OE manufacturer that it was required to conduct a safety
recall or other campaign, the OE manufacturer would be obligated to
provide notice to us under section 30166(l)(2). However, under today's
proposal, if all of the vehicle manufacturers using the item in
question timely provide us with a report of a foreign safety recall or
other safety campaign under section 30166(l)(1), the OE component
manufacturer would not be obligated to provide notice under this
provision.
Recalls and other safety campaigns involving problems with
replacement equipment, abroad or in the United States, ordinarily would
be conducted by the replacement equipment manufacturer. Examples of
replacement equipment recalls conducted in the United States are those
involving defects and noncompliances in tires, child restraints,
lighting equipment, brake hoses and brake fluids.
The early warning ANPRM asked ``how should `substantially similar'
motor vehicle equipment be defined? * * * Other than tires and off-
vehicle equipment (such as child seats), should the definition be
restricted to replacement equipment for substantially similar motor
vehicles?'' A related question is what replacement equipment would be
covered. We received only a limited amount of information in response,
which provided some insights into concerns of manufacturers of some
specific types of equipment.
One common item of replacement equipment is light sources. Many of
these items, if not identical, are substantially similar, regardless of
where in the world they are sold. Osram Sylvania, in fact, commented in
response to the early warning ANPRM that ``[m]ost of the Automotive
Lighting Products sold worldwide are similar to the products sold in
the United States.''
With regard to restraints, the Automotive Occupants Restraint
Council (Council) and Breed observed that there are two situations when
it would be reasonable to impose a reporting requirement on suppliers.
The first situation would address instances where a vehicle is recalled
overseas that is not sold in the U.S. Assuming that the vehicle
manufacturer would not have a reporting obligation, the Council
recognized that the recall could involve restraint systems that are
substantially similar to those sold in the U.S., but
[[Page 51914]]
cautioned that the supplier could report only after it learns that a
recall has been initiated. The second situation would be if a supplier
discovers a potential safety defect in a production run of parts. These
comments recognize that restraint systems such as seat belts and air
bags could be substantially similar in a variety of different vehicles.
We request comments on the matters raised by the Council and Breed (See
Docket Entries Nos. 6 and 21), particularly where the vehicle
manufacturer would not have a reporting obligation.
As with motor vehicles, we are proposing to deem motor vehicle
equipment sold or in use outside the United States to be identical or
substantially similar to equipment sold or offered for sale in the
United States if such equipment and the equipment sold or offered for
sale in the United States are the same component or system, or both
contain the component or system that gave rise or contributed to a
safety recall or other safety campaign in a foreign country, without
regard to part number.
We would regard foreign child restraint systems as substantially
similar (if not identical) to U.S. counterparts if they incorporate one
or more parts that are used in models of child restraints offered for
sale in the U.S., regardless of whether the restraints are designed for
children of different sizes than those sold in the U.S. and regardless
of whether they share the same model number or name. For example, if
buckles, tether hooks, anchorages, or straps are common throughout a
manufacturer's range of models, the child restraints would be
substantially similar even though the buckles, hooks, anchorages, or
straps might be used on a variety of add-on, backless, belt
positioning, rear-facing or booster seats produced by the manufacturer.
However, a manufacturer would not have to report a foreign campaign on
its child seats if the problem that led to the foreign campaign
involved a component or part that was not used on any child restraint
sold or offered for sale in the U.S.
With regard to tires, under today's proposal, foreign recalls and
campaigns involving tires of the same model name and size designation
would have to be reported to us regardless of brand name, manufacturing
plant, or mold. We recognize that many tire manufacturers use the same
model name for tires that may be substantially different from one
another, such as Goodyear Wrangler tires. However, the agency needs to
receive information about recalls of tires with common model names so
that we can assure ourselves whether tires covered are truly similar or
different from those sold in the U.S. Of course, the manufacturer can
accompany the submission with a discussion of the reasons why it
believes the tires are not substantially similar to U.S. tires.
It is also possible that a manufacturer could use a different model
name or names in foreign countries for tires identical to those sold in
the U.S. Recalls and other campaigns involving tires that would also
have to be reported to us under this rule. We request comments on
whether we have proposed an appropriate basis for identifying similar
foreign tires.
In the early warning ANPRM, we asked whether the definition of
substantially similar equipment should be restricted to replacement
equipment to be used on substantially similar vehicles. International
Truck stated that ``the definition should not be restricted.'' Others
focused on application. In an example given by Delphi, a bolt with a
given part number may perform in substantially dissimilar ways
depending on how and where it is used, and use of the bolt in a seat
belt anchorage requires a higher standard than its use in a less
critical safety application. Equipment suppliers noted that often
conditions under which the part operates are beyond the suppliers'
control and can only be judged by the vehicle manufacturer. Delphi
added, on the other hand, that ``dissimilar components can be
substantially similar'' because they ``may be susceptible to similar
failure modes if one of the components that may be common to all were
to have a defect.''
We expect that the scope of reporting under section 30166(l) will
be broader than the ultimate scope of defect determinations in the U.S.
It would vitiate the purpose of the reporting requirements of the TREAD
Act to allow manufacturers to avoid reporting requirements based on a
claimed difference in the operating environment for vehicles or
equipment.
We request comments on the appropriate formulation of test(s) for
determining whether foreign motor vehicle equipment is substantially
similar to U.S. equipment.
III. Contents of Notification to NHTSA
When a manufacturer of motor vehicles or motor vehicle equipment
decides to conduct a notification and remedy campaign in the United
States to address a safety-related defect or a noncompliance with a
FMVSS, or is ordered to do so by NHTSA, it must furnish information to
the agency as specified in 49 CFR part 573, Defect and noncompliance
reports. The contents of the required notification are set out in
section 573.5(c). These include the manufacturer's name (paragraph
(c)(1)), identification of the vehicles or items of motor vehicle
equipment potentially containing the defect or noncompliance, including
a description of the manufacturer's basis for its determination of the
recall population and a description of how the vehicles or items of
equipment to be recalled differ from similar vehicles or items of
equipment that the manufacturer has not included in the recall
(paragraph (c)(2)), the total number of vehicles or items of equipment
potentially containing the defect or noncompliance (paragraph (c)(3)),
the percentage of vehicles that actually contain the defect or
noncompliance (paragraph (c)(4)), a description of the defect or
noncompliance (paragraph (c)(5)), in the case of a defect, a chronology
of principal events that were the basis for the determination including
summaries of field or service reports, warranty claims, and the like
(paragraph (c)(6)), in the case of a noncompliance, the test results or
other basis upon which the manufacturer made its determination
(paragraph (c)(7)), and the supplier of the defective or noncomplying
equipment, if known.
We are proposing that this same information be provided in the
manufacturer's notification to NHTSA of a safety recall or other safety
campaign in a foreign country. In addition, we are proposing that the
manufacturer identify the foreign country, state whether the
determination was made by the manufacturer or a foreign government,
state the date thereof, state whether the foreign decision was a safety
recall or other safety campaign, and identify with specificity the
motor vehicles or motor vehicle equipment sold or offered for sale in
the United States that are identical or substantially similar to those
being recalled abroad. Manufacturers who are reporting campaigns
ordered by a foreign government would also be required to furnish
copies of the determination by the foreign government in the original
language and translated into English.
As indicated above, we are proposing to require that all the
information that currently must be submitted in connection with
domestic recalls be submitted for all foreign safety campaigns covered
by section 30166(l). We recognize that this is more information than is
currently required in connection with campaigns in the United States
that do not constitute safety recalls; under 49 CFR 573.8,
manufacturers must merely submit the
[[Page 51915]]
documents that they send to owners and dealers, regarding vehicle and
equipment malfunctions, and they need not provide all the information
set out in 49 CFR 573.5(c). We have proposed to require more complete
information, in part, because of the difficulty in distinguishing
between ``safety recalls'' and ``other safety campaigns'' in foreign
countries. However, we welcome comments on whether and how the level of
detail can be reduced for certain type of foreign safety campaigns.
Consistent with 49 CFR 573.5(b), which applies to defect and
noncompliance reports, any information required to be submitted to
NHTSA under this rule that is not available at the time the initial
report is due must be submitted as it becomes available.
IV. Timing
Section 30166(l) requires that manufacturers notify NHTSA ``not
later than 5 working days after determining to conduct a safety recall
or other safety campaign in a foreign country'' on substantially
similar vehicles and equipment, or after receiving notification from a
foreign government that such a campaign must be conducted. This 5-day
period appears to have been adopted based upon the time period in
regulations adopted to implement the notification provisions of the
Vehicle Safety Act. Section 30119(c)(2) of the Vehicle Safety Act
states in pertinent part that notification to the Secretary under
Section 30118 ``shall be given within a reasonable time after the
manufacturer first decides that a safety related defect or
noncompliance exists.'' After notice and comment, we adopted a
regulation specifying that ``not more than 5 working days'' is a
``reasonable time'' for notifying NHTSA of decisions that will lead to
domestic remedy campaigns (49 CFR 573.5(b)).
Consistent with the statute, we are proposing that the time period
for reporting foreign safety recalls or other safety campaigns is 5
working days from the date that the manufacturer, including one of its
subsidiaries or affiliates, decides to conduct, or is notified by a
foreign government (including by a foreign governmental unit) that it
must conduct, the recall or other campaign. The 5-day period in Section
30166(l) is very achievable in those cases in which the decision to
conduct the recall or other campaign is made by, or with the
concurrence of, the manufacturer's headquarters and there is little
doubt that the foreign vehicles or equipment in question are identical
or substantially similar to vehicles offered for sale in the U.S. It is
reasonable to assume that, in most cases, local subsidiaries or
affiliates of multinational manufacturers are not authorized to decide
to conduct safety recalls or other safety campaigns without the
concurrence of the corporate headquarters, or at least without
contemporaneously advising such headquarters of the action. Thus, the
headquarters will have at least basic information on the recall or
campaign. As a practical matter, we would expect few difficulties when
a foreign government provides notification of its determination that a
recall or other campaign must be conducted. There have been very few
recalls ordered by foreign governments. We would expect that there
would be communications between the foreign government and foreign
affiliate of a manufacturer before a government directed recall, so
that any formal notification would not be a surprise to the
manufacturer. In any event the notification would be in the form of a
written communication to the manufacturer or its local entity. The
addressee would be deemed to ``receive'' the notification when it is
delivered by mail, facsimile or other mechanism to the addressee. This
document could readily be forwarded to a manufacturer's headquarters.
To the extent that manufacturers do not have such processes in
place today, they would be required to implement procedures to assure
that the relevant information is provided promptly to the reporting
entity (presumably through a corporate headquarters) so that the
required notifications can be made to NHTSA in a timely manner.
Similarly, manufacturers would be required to implement procedures to
assure that notifications from foreign governments about safety recalls
or other safety campaigns are transmitted to NHTSA in a timely manner.
We recognize that it may be difficult for a local subsidiary or
affiliate to know, whether the vehicles or equipment covered by the
recall or other campaign in its country are substantially similar to
products offered for sale in the U.S. However, this lack of awareness
cannot justify a manufacturer's failure to provide relevant information
to NHTSA. Thus, manufacturers would need to assure that all recalls and
campaigns in foreign countries be brought to the attention of
appropriate persons at the company's headquarters, who will be able to
make the determination as to whether they must be reported to NHTSA. We
request comments on any issues posed by this approach to timing and
how, in the view of the commenter, they should be addressed.
V. Revision of Part 579 To Accommodate Section 3 of the TREAD Act
At present, 49 CFR Part 579 is titled ``Defect and Noncompliance
Responsibility.'' As part of a reorganization of its regulations to
respond to the TREAD Act, we are planning to amend Part 579 to transfer
its subject matter to a revised Part 573, and rename Part 579 as
``Reporting of Information and Communications About Potential
Defects.'' The revised regulation would include both the foreign defect
and early warning reporting requirements of Sections 3(a) and (b)
respectively of the TREAD Act. The current specifications for notice,
bulletins, and other communications specified in section 573.8 would be
transferred to section 579.6. While today's proposal restates section
573.8 in its proposed new location, we are not reproposing it and do
not request comment on it.
VI. Rulemaking Analyses
Executive Order 12866 and DOT Regulatory Policies and Procedures
This document was not reviewed under Executive Order 12866. It has
been determined that the rulemaking action is not significant under
Department of Transportation regulatory policies and procedures. We
estimate that fewer than 500 reports of foreign recalls and other
safety campaigns will be submitted annually; some of these would
involve parallel campaigns in multiple countries. There would be costs
in determining whether vehicles or equipment that are covered by a
foreign recall or campaign are identical or substantially similar to
vehicles and equipment sold in the United States. There will be costs
to manufacturers to prepare and submit reports of these recalls and
campaigns to the agency. Where a determination has been made in a
language other than English, a manufacturer will also have the cost of
translating the determination before supplying it to us, unless a
notice had been filed in the United States. Another cost would be
involved with preparing and submitting any annual list of similar
vehicles and equipment. Finally, there may be costs involved in
searching out and filing reports with NHTSA that are related to foreign
determinations made between November 1, 2000 and the effective date of
the final rule. The costs would appear to be principally those of man-
hours. We estimate that the costs will be less than one million dollars
per year. We seek comments from manufacturers on the estimated
[[Page 51916]]
costs of meeting a final rule based on this proposal.
Regulatory Flexibility Act
We have also considered the impacts of this rulemaking action in
relation to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I
certify that this rulemaking action does not have a significant
economic impact upon a substantial number of small entities. The basis
for this certification is that manufacturers of motor vehicles and
motor vehicle equipment that operate internationally are not small
entities. Accordingly, no regulatory flexibility analysis has been
prepared.
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 E.O. 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.'' A final rule based upon this NPRM, would regulate the
manufacturers of motor vehicles and motor vehicle equipment, would 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 E.O. 13132.
Civil Justice Reform
A rule based on this NPRM would 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.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the cost, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. A final rule based on this proposal would not
result in any expenditure by State, local, or tribal governments. The
final rule would be based upon and implement P.L. 106-414. It would
impact the private sector, specifically manufacturers of motor vehicles
and motor vehicle equipment. Under the proposal, these manufacturers
would have to report to NHTSA (presumably by letter) if they are
conducting, or have been ordered to conduct, a campaign outside the
United States on vehicles and equipment substantially similar to those
sold in the United States. The reporting manufacturer would be obliged
to have a communications system in place in order to provide this
information to NHTSA in a timely manner, which could be the same system
that reports domestic campaigns to NHTSA. If a manufacturer conducts no
foreign campaigns, the final rule will not require any expenditures
associated with reporting. If a manufacturer conducts a foreign
campaign, the cost to the manufacturer to report the campaign should be
minimal. NHTSA has therefore concluded that a rule based on this NPRM
would not have a $100 million effect, and it has not prepared an
Unfunded Mandates assessment.
Paperwork Reduction Act
The final rule will require a manufacturer of motor vehicles and
motor vehicle equipment to report information and data to NHTSA if it
decides to conduct, or if it is informed by a foreign government that
it must conduct, a safety recall or other safety campaign in a country
outside the United States. These 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 1329. Accordingly,
if not already encompassed by Part 573 they will be submitted to OMB
for its approval, pursuant to the requirements of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
Request for Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Please submit two copies of your comments, including the
attachments, to Docket Management at the beginning of this document,
under ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
at the beginning of this document under FOR FURTHER INFORMATION
CONTACT. In addition, you should submit two copies from which you have
deleted the claimed confidential business information, to Docket
Management at the address given at the beginning of this document under
ADDRESSES. When you send a comment containing information claimed to be
confidential business information, you should include a cover letter
setting forth the information specified in our confidential business
information regulation, 49 CFR Part 512.
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated at
the beginning of this notice under DATES. To the extent possible, we
will also consider comments that Docket Management receives after that
date. If Docket Management receives a comment too late for us to
consider in developing a proposed rule (assuming that one is issued),
we will consider that comment as an informal suggestion for future
rulemaking action.
How Can I Read the Comments Submitted By Other People?
You may read the comments received by Docket Management at the
address and times given near the beginning of this document under
ADDRESSES.
You may also see the comments on the internet. To read the comments
on the internet, take the following steps:
(1) Go to the Docket Management System (DMS) Web page of the
Department of Transportation (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/).
[[Page 51917]]
(2) On that page, click on ``search.''
(3) On the next page (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/search/), type in the
four-digit docket number shown at the heading of this document.
Example: if the docket number were ``NHTSA-2001-1234,'' you would type
``1234.''
(4) After typing the docket number, click on ``search.''
(5) The next page contains docket summary information for the
docket you selected. Click on the comments you wish to see.
You may download the comments. Although the comments are imaged
documents, instead of the word processing documents, the ``pdf''
versions of the documents are word searchable. Please note that even
after the comment closing date, we will continue to file relevant
information in the Docket as it becomes available. Further, some people
may submit late comments. Accordingly, we recommend that you
periodically search the Docket for new material.
List of Subjects in 49 CFR Part 579
Imports, Motor vehicle safety, Motor vehicles, Reporting and
recordkeeping requirements.
In consideration of the foregoing, 49 CFR part 579 is proposed to
be revised to read as follows:
PART 579--REPORTING OF INFORMATION AND COMMUNICATIONS ABOUT
POTENTIAL DEFECTS
Subpart A--General
Sec.
579.1 Scope.
579.2 Purpose
579.3 Application.
579.4 Definitions.
579.5 Address and manner for submitting reports and other
information.
579.6 Notices, bulletins, and other communications
579.7-10 [Reserved].
Subpart B--Reporting of Safety Recalls and Other Safety Campaigns
in Countries Other Than the United States
579.11 Additional definitions for subpart B.
579.12 Identical or substantially similar vehicles and equipment.
579.13 Reporting responsibilities.
579.14 Contents of reports.
579.15 Who may submit reports.
579.16-20 [Reserved]
Subpart C--Early Warning Reports
579.21-30 [Reserved]
Authority: Sec. 3(a), Pub. L. 106-414; 49 U.S.C. 30102-103,
30112, 30117-121, 30166-167; delegation of authority at 49 CFR 1.50.
Sec. 579.1 Scope.
This part sets forth the responsibilities of manufacturers of motor
vehicles and motor vehicle equipment for reporting of information,
including data, that may indicate the existence of safety-related
defects or noncompliances with Federal motor vehicle safety standards,
and for reporting foreign recalls and other safety-related campaigns
conducted outside the United States.
Sec. 579.2 Purpose.
The purpose of this part is to enhance motor vehicle safety by
specifying information, including data, that manufacturers of motor
vehicles and motor vehicle equipment must report to NHTSA that may
indicate the existence of a potential safety-related defect or a
noncompliance with a Federal motor vehicle safety standard in their
products before the manufacturer or NHTSA has decided that a defect or
noncompliance exists, including the reporting of safety recalls and
other safety campaigns that the manufacturer conducts outside the
United States.
Sec. 579.3 Application.
This part applies to all manufacturers of motor vehicles and motor
vehicle equipment.
Sec. 579.4 Definitions.
For purposes of this part:
Equipment comprises original equipment and replacement equipment:
Original equipment means motor vehicle equipment (other than a tire)
which was installed in or on a motor vehicle at the time of its
delivery to the first purchaser if the item of equipment was installed
on or in the motor vehicle at the time of its delivery to a dealer or
distributor for distribution, or installed by the dealer or distributor
with the express authorization of the motor vehicle manufacturer.
Replacement equipment means motor vehicle equipment other than original
equipment and a tire.
Sec. 579.5 Address and manner for submitting reports and other
information.
Reports required to be submitted to NHTSA pursuant to this part
must be submitted to the Associate Administrator for Safety Assurance,
National Highway Traffic Safety Administration (NHTSA), 400 7th Street,
S.W., Washington, DC 20590. Submissions must be made by a means that
permits the sender to verify that the report was in fact received by
NHTSA and the day it was received by NHTSA.
Sec. 579.6 Notices, bulletins, and other communications.
Each manufacturer shall furnish to NHTSA a copy of all notices,
bulletins, and other communications (including those transmitted by
computer, telefax, or other electronic means and including warranty and
policy extension communiques and product improvement bulletins) other
than those required to be submitted pursuant to Sec. 573.5(c)(9) of
this chapter, sent to more than one manufacturer, distributor, dealer,
lessor, lessee, or purchaser, regarding any defect in its vehicles or
items of equipment (including any failure or malfunction beyond normal
deterioration in use, or any failure of performance, or any flaw or
unintended deviation from design specifications), whether or not such
defect is safety-related. Copies shall be in readable form and shall be
submitted monthly, not more than five (5) working days after the end of
each month.
Secs. 579.7-10 [Reserved]
Subpart B--Reporting of Safety Recalls and Other Safety Campaigns
in Countries Other Than the United States.
Sec. 579.11 Additional definitions for subpart B.
For purposes of this subpart:
Other safety campaign means an action in which a manufacturer,
including but not limited to a foreign subsidiary or affiliate or agent
of a manufacturer, communicates with owners and/or dealers in a foreign
country with respect to conditions under which vehicles or equipment
should be operated, repaired, or replaced, that relate to safety.
Safety recall means an offer by a manufacturer, including but not
limited to a foreign subsidiary or affiliate or agent of a
manufacturer, to owners of vehicles or equipment in a foreign country
to provide remedial action to address a defect that relates to motor
vehicle safety or a failure to comply with an applicable safety
standard or guideline.
Sec. 579.12 Identical or substantially similar vehicles and equipment.
For purposes of this subpart:
(a) A motor vehicle sold or in use outside the United States is
identical or substantially similar to a motor vehicle sold or offered
for sale in the United States if:
(1) Such a vehicle has been sold in Canada or has been certified as
complying with the Canadian Motor Vehicle Safety Standards;
[[Page 51918]]
(2) Such a vehicle is listed in Appendix A to part 593 of this
chapter or determined to be eligible for importation into the United
States in any agency decision issued between amendments to Appendix A
to part 593;
(3) Such a vehicle is manufactured in the United States for sale in
a foreign country,
(4) Such a vehicle is a counterpart of a vehicle sold or offered
for sale in the United States or
(5) Such a vehicle and a vehicle sold or offered for sale in the
United States both contain the component or system that gave rise or
contributed to a safety recall or other safety campaign in a foreign
country, without regard to the vehicle platform on which the components
or systems is installed and regardless of whether the part numbers are
identical.
(b) Motor vehicle equipment sold or in use outside the United
States is identical or substantially similar to equipment sold or
offered for sale in the United States if such equipment and the
equipment sold or offered for sale in the United States are the same
component or system, or both contain the component or system that gave
rise or contributed to a safety recall or other safety campaign in a
foreign country, regardless of whether the part numbers are identical.
(c) Tires sold or in use outside the United States are
substantially similar to tires sold or offered for sale in the United
States if they have the same model name and size designation, or if
they are identical except for the model name.
Sec. 579.13 Reporting responsibilities.
(a) Not later than 5 working days after a manufacturer, including
any of its subsidiaries and affiliates, determines to conduct a safety
recall or other safety campaign in a country other than the United
States covering a motor vehicle or motor vehicle equipment that is
identical or substantially similar to a vehicle or equipment sold or
offered for sale in the United States, the manufacturer of the vehicle
or equipment covered by the recall or other campaign shall report the
determination to NHTSA.
(b) Not later than 5 working days after a manufacturer, including
any of its subsidiaries and affiliates, receives notification that the
government of a country other than the United States, including a
political subdivision of such country, has determined that a safety
recall or other safety campaign must be conducted in that country with
respect to a motor vehicle or motor vehicle equipment that is identical
or substantially similar to a vehicle or equipment sold or offered for
sale in the United States, the manufacturer of the vehicle or equipment
covered by the campaign shall report the determination to NHTSA.
(c) Not later than 30 days after [the effective date of the final
rule], a manufacturer, including its subsidiaries and affiliates, that
has made a determination to conduct a recall or other safety campaign
in a country other than the United States, or who has received
notification that the government of a country other than the United
States, including a political subdivision of such country, has
determined that a safety recall or other safety campaign must be
conducted in that country, in the period between November 1, 2000 and
[the date of the effective date of the final rule], and who has not
reported such determination or notification of determination to NHTSA
as of [the effective date of the final rule], shall report such
determination or notification of determination to NHTSA if the safety
recall or other safety campaign covers a motor vehicle or equipment
that is identical or substantially similar to a vehicle or equipment
sold or offered for sale in the United States.
(d) Notwithstanding paragraphs (a), (b) and (c), of this section,
the manufacturer need not report the safety recall or other safety
campaign to NHTSA if the manufacturer:
(1) Has determined that for the same or substantially similar
reasons that it is conducting a safety recall or other safety campaign
in a country other than the United States, a safety-related defect or
noncompliance with a Federal motor vehicle safety standard exists in
identical or substantially similar motor vehicles or motor vehicle
equipment sold or offered for sale in the United States, and
(2) Has filed a defect or noncompliance information report pursuant
to part 573 of this chapter, provided that the remedy of the foreign
safety recall or other safety campaign is identical to the remedy of
the campaign in the United States and the scope of the foreign recall
or campaign is not broader than the scope of the recall campaign in the
United States.
(e) Each manufacturer of motor vehicles that sells or offers a
motor vehicle for sale in the United States shall identify each model
of vehicle that the manufacturer sells or plans to sell in the
following year in a foreign country that the manufacturer believes is
identical or substantially similar to a motor vehicle sold, offered for
sale, of planned for sale in the following year in the United States.
The manufacturer shall inform NHTSA in writing no later than November 1
of each year of any such models that it plans to sell in any foreign
country during any part of the following year.
Sec. 579.14 Contents of reports.
(a) Reports made pursuant to Sec. 579.13 shall include the
information specified in Sec. 573.5(c)(1) through (7) of this chapter.
Each such report shall also identify each foreign country in which the
recall or other safety campaign is being conducted, state whether the
determination was made by the manufacturer or by a foreign government,
specify the date of the determination and the date the recall or other
campaign was commenced or will commence in each foreign country, state
whether the foreign action was a safety recall or other safety
campaign, and identify all motor vehicles and/or equipment that the
manufacturer sold or offered for sale in the United States that are
identical or substantially similar to the motor vehicles or equipment
covered by the foreign recall or campaign. If a determination has been
made by the government of a foreign country, the report shall also
include copies of the determination by the foreign government in the
original language and translated into English.
(b) Information required by paragraph (a) of this section that is
not available within the 5-day period specified in Sec. 579.13 shall be
submitted as it becomes available.
Sec. 579.15 Who may submit reports.
Reports under this part may be filed by either the fabricating
manufacturer or by the importer of the vehicle or equipment that is
identical or substantially similar to that covered by the foreign
recall or other safety campaign.
Secs. 579.16-20 [Reserved]
Subpart C--Early Warning Reports
Secs. 579.21-30 [Reserved]
Issued on: October 4, 2001.
Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.
[FR Doc. 01-25429 Filed 10-10-01; 8:45 am]
BILLING CODE 4910-59-P