[Federal Register: July 10, 2002 (Volume 67, Number 132)]
[Rules and Regulations]
[Page 45821-45883]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jy02-20]
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Part III
Department of Transportation
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National Highway Traffic Safety Administration
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49 CFR Part 573 et al.
Reporting of Information and Documents About Potential Defects
Retention of Records That Could Indicate Defects; Final Rule
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 573, 574, 576, 579
[Docket No. NHTSA 2001-8677; Notice 3]
RIN 2127-AI25
Reporting of Information and Documents About Potential Defects
Retention of Records That Could Indicate Defects
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule.
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SUMMARY: This document adopts a regulation that will implement 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.
We are also adopting amendments to NHTSA's general and tire
recordkeeping regulations to assure that manufacturers retain relevant
information.
The final rule also moves certain existing provisions of NHTSA's
regulations to other parts of the Code of Federal Regulations.
DATES: Effective Date: The effective date of this final rule is August
9, 2002. 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
the final rule must be received not later than August 26, 2002.
ADDRESSES: Petitions for reconsideration of the 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.
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:
Table of Contents
I. Summary of the Final Rule
II. Background: The TREAD Act (Public Law 106-414)
III. Manufacturers That Will Be Covered by the New Reporting
Requirements
A. Scope of the term ``manufacturer''
1. Proposed requirements for reporting about events in foreign
countries
2. Assertion that extending the definition of ``manufacturer''
to include subsidiaries and affiliates exceeds our statutory
authority
3. Nexus to the motor vehicle industry
4. Duplicate reporting
5. Suggestion to require a ``control relationship'' between
manufacturers and covered subsidiaries and affiliates
6. Proposed application to outside legal counsel
7. Constructive notice of information received by agents
B. Manufacturers of motor vehicles
C. Manufacturers of motor vehicle equipment
1. Original equipment
2. Replacement equipment
3. Tires
4. Definition of ``equipment''
IV. Information That Must Be Reported
A. Production information
B. Definition of ``claim''
C. Definition of ``notice''
D. Identification of the product in claims and notices
E. Claims and notices involving death
1. Whether to define death
2. Claims involving death
3. Notices involving death
4. Information about deaths
F. Claims and notices involving injuries
1. The definition of ``injury''
2. Reporting of incidents in which persons were injured, based
on claims and notices
G. Other possible conditions on reporting of claims and notices
for death and injury
H. Identical or substantially similar motor vehicles or
equipment
1. Substantially similar motor vehicles
2. Substantially similar motor vehicle equipment other than
tires
3. Substantially similar tires
I. Claims involving property damage
1. Definition of ``property damage''
2. Reports of property damage claims; whether to establish
dollar-value thresholds
J. Consumer complaints
1. Definition of ``consumer complaint''
2. The rationale for requiring reports of consumer complaints
K. Warranty claims information
1. Definitions of ``warranty,'' ``warranty claim,'' and
``warranty adjustment''
2. Reports involving warranty claims
L. Field reports
1. Definition of ``field report''
2. Reporting and submission of field reports
M. Customer satisfaction campaigns, consumer advisories;
recalls, or other activities involving the repair or replacement of
motor vehicles or motor vehicle equipment
N. Components and systems covered by reports
O. Updating of information
P. One-time reporting of historical information
V. When Information Must be Reported
A. Periodically
B. Upon NHTSA's request
C. One-time historical report
VI. The Manner and Form in Which Information Will be Reported
VII. How NHTSA Plans to Handle and Utilize Early Warning Information
A. Review and use of information
B. Information in the possession of the manufacturer
C. The requirements are not unduly burdensome
D. Periodic Review
VIII. Extension of Recordkeeping Requirements to Include
Manufacturers of Child Restraint Systems and Tires
IX. Administrative Amendments to 49 CFR Part 573 to Accommodate
Final Rules
Implementing 49 U.S.C. Sections 30166(l) and (m)
X. Rulemaking Analyses
I. Summary of the Final Rule
In our notice of proposed rulemaking (NPRM) (66 FR 66190), we
proposed to divide manufacturers of motor vehicles and motor vehicle
equipment into two groups with different responsibilities for reporting
information that could indicate the existence of potential safety-
related defects. There was no opposition to this approach, and we are
adopting it.
The first group consists of larger manufacturers of motor vehicles,
and all manufacturers of child restraint systems and tires. In general,
the larger vehicle manufacturers must report separately on four
categories of vehicles (if they produced, imported, offered for sale,
or sold 500 or more of a category annually in the United States): light
vehicles, medium-heavy vehicles and all buses, trailers, and
motorcycles.
Deaths. These manufacturers must report certain specified
information about each incident involving a death that occurred in the
United States that is identified in a claim (as defined) against and
received by the manufacturer. They must also report information about
incidents involving a death in the United States that is identified in
a notice received by the manufacturer alleging or proving that the
death was caused by a possible defect in the manufacturer's product.
Finally, they must report on each death occurring in foreign countries
that is identified in a claim against the manufacturer involving the
manufacturer's product, or one that is identical or substantially
similar to a product that the manufacturer has offered for sale in the
United States.
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Injuries. These manufacturers must report certain
specified information about each incident involving an injury that
occurred in the United States that is identified in a claim against and
received by the manufacturer, or that is identified in a notice
received by the manufacturer which notice alleges or proves that the
injury was caused by a possible defect in the manufacturer's product.
Property damage. These manufacturers (other than child
restraint system manufacturers) must report the numbers of claims for
property damage that occurred in the United States that are related to
alleged problems with certain specified components and systems,
regardless of the amount of such claims.
Consumer complaints. These manufacturers (other than tire
manufacturers) must report the numbers of consumer complaints they
receive that are related to problems with certain specified components
and systems that occurred in the United States. Manufacturers of child
restraint systems must report the combined number of such consumer
complaints and warranty claims, as discussed below.
Warranty claims information. These manufacturers must
report the number of warranty claims (adjustments for tire
manufacturers), including extended warranty and good will, they receive
that are related to problems with certain specified components and
systems that occurred in the United States. As noted above,
manufacturers of child restraint systems must combine these with the
number of reportable consumer complaints.
Field reports. These manufacturers (other than tire
manufacturers) must report the total number of field reports they
receive from the manufacturer's employees, representatives, and
dealers, and from fleets, that are related to problems with certain
specified components and systems that occurred in the United States. In
addition, manufacturers must provide copies of certain field reports
received from their employees, representatives, and fleets, but are not
required to provide copies of reports received from dealers.
Production. These manufacturers must report the number of
vehicles, child restraint systems, and tires, by make, model, and model
year, during the reporting period and the prior nine model years (prior
four years for child restraint systems and tires).
These manufacturers must separately report the numbers identified
above for each model and model year, as the rule defines it (ten years
for vehicles and five years for tires and child restraint systems).
A manufacturer or brand name owner of tires will not have to report
any information other than information relating to incidents involving
deaths for limited production tires and other tires exempted from the
Uniform Tire Quality Grading Standards pursuant to 49 CFR
575.104(c)(1). In addition, tire manufacturers need only report
incidents involving deaths for tires other than passenger car tires,
light truck tires, or motorcycle tires. (Manufacturers should note
these exclusions in reviewing the reporting requirements under this
rule, as we may not repeat it in all instances in which it may apply).
The second group of manufacturers consists of all other
manufacturers of motor vehicles and motor vehicle equipment, i.e.,
vehicle manufacturers insofar as they produced, imported, or sold in
the United States fewer than 500 light vehicles, medium-heavy vehicles
(including buses), motorcycles, or trailers annually, manufacturers of
original motor vehicle equipment and manufacturers of replacement motor
vehicle equipment other than child restraint systems and tires. These
manufacturers must report the same information about incidents
involving deaths as the first category, but are not required to report
any other information.
In addition, all vehicle and equipment manufacturers in both groups
must provide copies of all documents sent or made available to more
than one dealer, distributor, owner, purchaser, lessor or lessee, in
the United States with respect to customer satisfaction campaigns,
consumer advisories, recalls, or other activities involving the repair
or replacement of vehicles or equipment.
Reports must be submitted electronically, in specified formats. The
components and systems on which reporting is required will vary,
depending on the type of product involved. Documents such as consumer
advisories must be submitted electronically or in hard copy.
With respect to the information required to be submitted under this
rule, there will be four reporting periods each calendar year of three
months each. The first such report will cover the second calendar
quarter of 2003. Reports, including copies of field reports, will be
due not later than 30 days after the end of a calendar quarter, except
for the final three calendar quarters of 2003, when we are allowing a
period of 60 days after the end of the calendar quarter. Documents
other than field reports that are required to be submitted under this
final rule (those documents currently required under 49 CFR 573.8),
will be due not later than 5 working days after the end of the month in
which they are generated by the manufacturer, beginning with April
2003.
To help NHTSA identify trends that could indicate potential safety
problems, manufacturers will be required, on a one-time basis, to
report the number of warranty claims or adjustments and the number of
field reports for each calendar quarter during the three-year period
from April 1, 2000 through March 31, 2003, the date preceding the
beginning of the first reporting period that is established by the
final rule, April 1, 2003. Submission of copies of field reports is not
required under this one-time provision.
The early warning reporting requirements will comprise Subpart C of
a new 49 CFR Part 579. Following final rulemaking, the foreign defect
reporting requirements proposed on October 11, 2001 (66 FR 51907) will
comprise Subpart B of Part 579. This rule adopts a Subpart A containing
general requirements that will apply to both Subparts B and C, except
where otherwise stated.
We are also adopting amendments that extend the recordkeeping
requirements of 49 CFR Part 576 to child restraint system and tire
manufacturers:
These manufacturers will now be required to maintain the
same types of records that manufacturers of vehicles have been required
to keep under 49 CFR Part 576.
Manufacturers of tires will also be required to retain for
five years records of purchasers of tires they manufacture.
Manufacturers of motor vehicles will be required to retain for five
years records of tires on each vehicle manufactured and the purchaser
of each vehicle. Currently, 49 CFR Part 574 requires that these records
be retained for three years.
In addition, the record retention requirements have been expanded
to require all manufacturers to retain, for five years, the underlying
records on which the information they provide NHTSA under the early
warning rule is based. (For manufacturers of equipment other than tires
and child restraint systems, this is limited to records related to
incidents referred to in claims and notices involving deaths.)
The early warning final rule, the final rule pertaining to foreign
defect campaigns, and current 49 CFR 573.8 will be codified in 49 CFR
Part 579 (2002). Part 573 is being amended to include the provisions of
current Part 579 (2001) with respect to defect and noncompliance
responsibility. These are
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reflected in amendments to the scope, purpose, and definitions of Part
573, and the addition of the substantive requirements of existing
Section 579.5 as a new Section 573.5.
The final rule is effective August 9, 2002. The first quarterly
reporting period for early warning information begins on April 1, 2003.
Quarterly reports for calendar 2003 will not be due until two months
following the end of the quarter, (e.g., the first quarterly report
will be due on August 31, 2003). Thereafter, beginning with the first
quarter of calendar 2004, information is due 30 days following the end
of the reporting period. The one-time report of historical information
will be due September 30, 2003, approximately 90 days following the end
of the first reporting period. The documents that are required to be
submitted on a monthly basis will be due five days after the end of the
month in which they are generated, beginning with April 2003.
II. Background: The TREAD Act (Public Law 106-414)
The Transportation Recall Enhancement, Accountability, and
Documentation (TREAD) Act was enacted on November 1, 2000, Public Law
106-414.
The TREAD Act amends 49 U.S.C. 30166 to add a new subsection (m),
Early warning reporting requirements. This subsection provides for
NHTSA to require manufacturers of motor vehicles and motor vehicle
equipment to submit information, periodically or upon NHTSA's request,
that includes claims for deaths and serious injuries, property damage
data, communications to customers and others, information on incidents
resulting in fatalities or serious injuries from possible defects in
vehicles or equipment in the United States or in identical or
substantially similar vehicles or equipment in a foreign country, and
other information that may assist NHTSA in identifying potential
safety-related defects.
Sections 30166(m)(3), (4), and (5) address, respectively, the
elements to be reported, the handling and utilization of reported
information, and periodic review and update of the final rule.
The crux of the early warning provisions is Section 30166(m)(3),
which states:
(3) Reporting elements.
(A) Warranty and claims data. As part of the final rule * * *
the Secretary [of Transportation] shall require manufacturers of
motor vehicles and motor vehicle equipment to report, periodically
or upon request by the Secretary, information which is received by
the manufacturer derived from foreign and domestic sources to the
extent that such information may assist in the identification of
defects related to motor vehicle safety in motor vehicles and motor
vehicle equipment in the United States and which concerns--
(i) data on claims submitted to the manufacturer for serious
injuries (including death) and aggregate statistical data on
property damage from alleged defects in a motor vehicle or in motor
vehicle equipment; or
(ii) customer satisfaction campaigns, consumer advisories,
recalls, or other activity involving the repair or replacement of
motor vehicles or items of motor vehicle equipment.
(B) Other data. As part of the final rule * * *, the Secretary
may, to the extent that such information may assist in the
identification of defects related to motor vehicle safety in motor
vehicles and motor vehicle equipment in the United States, require
manufacturers of motor vehicles or motor vehicle equipment to
report, periodically or upon request of the Secretary, such
information as the Secretary may request.
(C) Reporting of possible defects. The manufacturer of a motor
vehicle or motor vehicle equipment shall report to the Secretary, in
such manner as the Secretary establishes by regulation, 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 the United States, or 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.
The Secretary has delegated to the NHTSA Administrator the
authority to carry out 49 U.S.C. Chapter 301 (49 CFR 1.50(a)).
On January 22, 2001, we issued an advance notice of proposed
rulemaking (ANPRM) to discuss and to solicit comments on the ways in
which NHTSA may best implement these statutory provisions (66 FR 6532).
After considering the many comments provided in response to the ANPRM,
we followed this with a notice of proposed rulemaking (NPRM), published
on December 21, 2001 (66 FR 66190).
On October 11, 2001, we issued a separate NPRM that would implement
another provision of the TREAD Act, adding Section 30166(l) to Title 49
(66 FR 51907). Subsection (l) also applies to manufacturers of motor
vehicles and motor vehicle equipment; it requires them to notify us of
safety recalls and other safety campaigns that they conduct outside the
United States, or are ordered by a foreign government to conduct
abroad, on vehicles and equipment identical or substantially similar to
those sold in the United States. The December 21, 2001 early warning
rule NPRM stated that the definitions proposed in Subpart A of that
NPRM would apply to the rule regarding notification of foreign safety
campaigns.
In response to the NPRM on the early warning rule, we received
comments from a variety of sources. Motor vehicle manufacturers and
associated trade organizations who commented were Ford Motor Company
(Ford), the Truck Manufacturers Association (TMA), the Association of
International Automobile Manufacturers, Inc. (AIAM), the Recreational
Vehicle Industry Association (RVIA), Harley-Davidson Motor Company
(Harley-Davidson), Nissan North America, Inc. (Nissan), Volkswagen of
America, Inc. (for itself, Volkswagen AG and Audi AG) (Volkswagen),
American Honda Motor Company (Honda), the Motorcycle Industry Council
(MIC), Blue Bird Body Company (Blue Bird), General Motors Corporation
(GM), Gillig Corporation (Gillig), Spartan Motors Chassis, Inc.
(Spartan), Porsche Cars North America, Inc. (Porsche), Fleetwood
Enterprises, Inc., (Fleetwood), Utilimaster Corporation (Utilimaster),
and the Alliance of Automobile Manufacturers (the Alliance). The tire
industry was represented by the Rubber Manufacturers Association (RMA).
The Juvenile Products Manufacturers Association (JPMA) represented the
child restraint system industry. Other motor vehicle equipment
manufacturers and associated trade organizations who commented were the
American Motorcyclist Association (AMA), Johnson Controls (Johnson),
the Waste Equipment Technology Association (Wastec), the Specialty
Equipment Market Association (SEMA), the National Truck Equipment
Association (NTEA), the Motor and Equipment Manufacturers Association
(MEMA) for itself and the Original Equipment Suppliers Association, the
National Automobile Dealers Association (NADA), Delphi Automotive
Systems, LLC (Delphi), Webb Wheel Products, Inc. (Webb), and Bendix
Commercial Vehicle Systems, LLC (Bendix). We also received comments
from Public Citizen (PC), Consumers Union (CU), and a number of
individuals concerned about a reference in the NPRM to motorcycle
apparel.
These comments have provided us with numerous insights in
developing this final rule. This completes the first phase of our early
warning rulemaking. Consistent with Section 30166(m)(5), we will
periodically review the final rule and consider possible amendments.
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III. Manufacturers That Will Be Covered by the New Reporting
Requirements
A. Scope of the Term ``manufacturer''
The proposed rule dealt primarily with the information that would
be provided to NHTSA. Most of the information to be provided involved
activities and events related to motor vehicle safety in vehicles and
equipment in the United States; some information would be required with
regard to some claims related to deaths in foreign countries involving
motor vehicles or equipment that are identical or ``substantially
similar'' to vehicles or equipment that are sold in the United States.
The NPRM addressed who was obligated to provide the information
required under the proposed rule. We recognized that the information
identified in the proposed rule could be maintained within various sub-
entities of a multinational corporation. To assure that we received the
information and to preclude non-reporting on the basis that the
information was held by an entity not covered by the regulation, we
proposed to define the covered entity--the manufacturer--inclusively to
include corporate parents, subsidiaries and affiliates. Under this
formulation, the information identified in the proposed rule would have
to be submitted to NHTSA regardless of where it was maintained in a
multinational corporation with numerous subsidiaries. At the same time,
as a practical matter, we wrote the reporting obligations such that
they would most likely be carried out by the entity that has
traditionally reported to NHTSA.
In particular, in the NPRM, at Section 579.3(a) (``Application''),
we stated ``This part applies to all manufacturers of motor vehicles
and motor vehicle equipment with respect to all vehicles and equipment
that have been offered for sale, sold, or leased by the manufacturer,
any parent corporation of the manufacturer, any subsidiary or affiliate
of the manufacturer, or any subsidiary or affiliate of any parent
corporation of the manufacturer.'' In subsection (b), we stated that
``[i]n the case of any report required under this part, compliance by
either the fabricating manufacturer or the importer of the motor
vehicle or motor vehicle equipment shall be considered compliance by
both.'' \1\
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\1\ The text of proposed subsection (b) directly parallels the
existing Code of Federal Regulations provision that governs the
responsibilities of fabricating manufacturers and importers with
respect to the filing of reports informing NHTSA of defective and
noncompliant motor vehicles and motor vehicle equipment and of the
progress of recall campaigns. See 49 CFR 573.3(b).
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Further, at proposed Section 579.4, we stated that the term
``manufacturer'' is used as defined in 49 U.S.C. 30102; however, for
purposes of Part 579, it also ``includes any parent corporation of the
manufacturer, any subsidiary or affiliate of the manufacturer, any
subsidiary or affiliate of any parent corporation of the manufacturer,
and any legal counsel retained by the manufacturer.''
In the NPRM, we stated that the TREAD Act expanded manufacturers'
responsibilities with respect to foreign events and activities and thus
has extraterritorial effect. As we noted, in its comments on the ANPRM,
the Alliance recognized that the TREAD Act was clearly written by
Congress to apply to persons and activities outside the United States,
and that the rule could reasonably require reports from foreign
companies manufacturing vehicles for sale in the United States as long
as the reports related to issues that could arise in those vehicles.
Under the NPRM, foreign entities would be required to provide the same
information as we would require for domestic manufacturers, but only
with respect to vehicles and equipment that they sell in the United
States and to incidents involving death outside the United States that
involve identical or substantially similar motor vehicles or equipment.
See 66 FR at 66193-66194. We explained that, in view of both the
definition of manufacturer and the specific provisions of Section
30166(m), we believed that the agency has authority to require a report
from the entity that maintains the information, from the fabricating
manufacturer, and from the importer of the vehicle or equipment, but
that we were proposing to require reporting only by either the
fabricating manufacturer or by the importer, because this was
consistent with current reporting under 49 CFR Part 573 and with our
recent proposals for reporting of safety recalls and other safety
campaigns in foreign countries, pursuant to 49 U.S.C. 30166(l). See 66
FR at 66193-66194. And we observed that a multinational corporation
must adopt practices to ensure that all relevant information on matters
for which reports are required is made available to that corporation's
designated reporting entity, so that the designated entity timely
provides the information to NHTSA. We stated that a multinational
corporation would be violating the law if it designated its U.S.
importer as its reporting entity but failed to assure that the importer
was provided with the information required to be reported. See id. at
66194.
In addition, in the preamble to the NPRM, at Section III.D, we
explained that we proposed to deem information (such as claims-related
information) that is initially received by representatives of the
manufacturer (such as their registered agents and outside counsel) to
be in the possession of the manufacturer, and thus to require each
manufacturer to ensure that entities it has the ability to control
furnish it with the information covered by this rule so that the
manufacturer may make a full and timely report to NHTSA. However, we
also stated explicitly that we were not proposing to require such
representatives to report directly to NHTSA. See 66 FR at 66194.
Many manufacturers and trade associations commented on various
aspects of the scope of ``manufacturer,'' particularly with respect to
subsidiaries and affiliates (including law firms). These commenters
included AIAM, the Alliance, Delphi, Ford, GM, Harley-Davidson, Honda,
Bendix, MEMA, Nissan, RMA, TMA, Volkswagen, and Webb. Ford, GM, Nissan,
and Volkswagen also stated that they supported the Alliance's comments;
Honda also stated that it supported AIAM's comments. The comments are
discussed by issue, below.
1. Proposed Requirements for Reporting About Events in Foreign
Countries
Foreign manufacturers that manufacture vehicles or equipment for
sale in the United States have long been subject to the reach of the
American legal and regulatory system. They are subject to the
requirement that they certify that all their vehicles or equipment
imported into the United States comply with applicable Federal motor
vehicle safety standards. 49 U.S.C. 30115. They are subject to recall
provisions. 49 U.S.C. 30117-120. They have been required to provide to
NHTSA copies of all notices, bulletins, and other communications to
more than one U.S. distributor, dealer, or purchaser regarding defects.
49 U.S.C. 30166(f) and 49 CFR 573.8. They are subject to record keeping
and reporting provisions. 49 U.S.C. 30166 and 49 CFR Part 576. The
Vehicle Safety Act requires such manufacturers to appoint agents for
the service of process in actions involving this agency (49 U.S.C.
30164; see 49 U.S.C. 30102(a)(5)(A)). Both foreign and domestic
manufacturers also appoint registered agents for the service of
judicial process in general; these may be, but are not
[[Page 45826]]
required to be, the same agents who register with NHTSA. Furthermore,
foreign manufacturers that have U.S. subsidiaries do not rely
exclusively on their American subsidiaries to conduct business before
this agency. Rather, both Asian and European manufacturers have
routinely participated in meetings at NHTSA headquarters in defects
investigations, and even appear in litigation involving this agency.
As acknowledged by the Alliance in its comments on the ANPRM, the
TREAD Act was clearly intended by the Congress to apply
extraterritorially. The Alliance stated that this creates a ``whole new
body of law and potential regulation'' in the area of gathering and
reporting of information from persons overseas on their overseas
activities.
In the NPRM, we focused primarily on information involving events
or activities in the United States and to a lesser degree on certain
foreign claims involving vehicles and equipment that are identical or
substantially similar to those sold in the United States. As noted
above, we proposed, at Section 579.3(a) and Section 579.4(a), to adopt
a single, broad definition of manufacturer to assure that we received
this information, be it in the possession of a domestic or foreign
component of the manufacturer.
Several commenters, including the Alliance, Nissan, VW, and AIAM,
objected to the breadth of our proposed definition of manufacturer. The
Alliance and Nissan asserted that the proposed definition impermissibly
failed to articulate a nexus between the covered manufacturers and the
United States, and that in the absence of such a nexus, the proposed
definition amounted to an attempt to assert extraterritorial
jurisdiction in violation of international law. VW stated that NHTSA
appeared to have recognized in the preamble to the NPRM that reporting
obligations must be limited to foreign entities that manufacture
vehicles or equipment for export to the U.S. (citing 66 FR 66193), but
that NHTSA had failed to incorporate this recognition into the proposed
regulatory text.
In our opinion, the proposed regulations were based upon and
incorporated an adequate nexus to the United States. In addition to
addressing events and acts in the United States, consistent with the
TREAD Act, we required the submission of relatively limited information
about claims for deaths in foreign motor vehicles that are
``substantially similar'' to vehicles that are sold in the United
States. The substantial similarity of those foreign vehicles to their
American counterparts creates a sufficient nexus to the United States.
As we indicated in the preamble to the NPRM (see 66 FR at 66193),
we dealt with the nexus issue in the provisions governing the substance
of the reports, rather than in the definition or ``application''
sections. However, to put this matter to rest, in response to the
comments from the Alliance and others, we have decided to modify
proposed Section 579.3(a), Application, by inserting, after the word
``leased,'' the phrase ``in the United States'' and by inserting, at
the very end, with respect to vehicles and equipment offered for sale,
sold or leased in foreign countries, the phrase ``substantially similar
to any motor vehicles or motor vehicle equipment that have been offered
for sale, sold, or leased in the United States.'' This will not make a
substantive change in what we proposed.
We note further that we did not receive any comments on this aspect
of the NPRM from any other branch or office of the U.S. government or
from any foreign government.
2. Assertion that extending the definition of ``manufacturer'' to
include subsidiaries and affiliates exceeds our statutory authority
Some commenters challenged the breadth of coverage of proposed
Sections 579.3(a) and 579.4(a) based on the assertion that we lack
statutory authority to include subsidiaries and affiliates within the
definition of ``manufacturer.'' They contended that our proposal to do
so violates congressional intent to limit the early warning
requirements to those entities that fall within the literal Safety Act
definition of the term--a person manufacturing or assembling vehicles
or equipment, or importing same for resale (49 U.S.C. 30102(a)(5)(A),
(B)). This position was presented in the abstract, without any
presentation of where the parent companies' headquarters, importing and
exporting subsidiaries, and assembly operation subsidiaries are
located, and without any showing whether or how, under their view of
the proper definition of manufacturer, NHTSA would be assured of
receiving information specifically covered by section 3 of the TREAD
Act; e.g., information on foreign safety recalls and other foreign
safety campaigns and information on incidents in foreign countries
involving fatalities alleged or proven to be caused by a possible
defect in a motor vehicle that is identical or substantially similar to
one offered for sale in the United States. See 49 U.S.C.
30166(l),(m)(3)(C). Implicit in their view was that, if information on
foreign recalls, foreign deaths, or other TREAD Act categories was in
the possession of a subsidiary that was not a manufacturer, assembler,
or importer for resale, as referred to above, there would be no legal
obligation to report such TREAD Act-related information to NHTSA.
We disagree with this assertion. Our proposal to include the parent
and subsidiaries and affiliates within the term ``manufacturer'' was
derived from our authority to implement 49 U.S.C. 30166(l) and (m).
These sections invest NHTSA with substantive rulemaking authority and
require that we exercise it. One element of this authority to issue
substantive rules is the ability to construe the statute. This includes
interpreting statutory provisions, such as the definition of
``manufacturer.'' Moreover, our interpretation is entirely consistent
with congressional intent. The manifest intent was that NHTSA have the
information to assist in promptly identifying safety-related defects.
In contrast, under the industry commenters' position, multinational
companies would not have to report foreign recall and early warning
information if it was not held by entities that fit squarely into their
definition of manufacturer--the assembler or the importer for resale.
This is inconsistent with the TREAD Act.
The TREAD Act was enacted in the context of substantial numbers of
deaths that occurred in the United States after defect-related deaths
had occurred in South America and the Middle East. The multinational
corporations that made and sold the vehicle (Ford Explorer) and
equipment (Firestone tires) were aware of assertions that their
products had caused these deaths and had conducted safety campaigns in
foreign countries. They had not informed NHTSA of these matters and
NHTSA was not aware of them until after it opened a formal defect
investigation in the spring of 2000. Congress sought to correct this
reporting deficiency, among other things.
Congress was aware that the vehicle and tire industries are
comprised of multinational corporations, most of which have their
principal place of business abroad, with numerous operations and
subsidiaries around the world. With increased globalization and efforts
to lower labor costs, this includes assembly operations in numerous
countries. Of the larger light vehicle manufacturers, only two (GM and
Ford) are based domestically, and they have numerous international
subsidiaries. The remainder, including Honda, Nissan, Toyota,
Volkswagen, DaimlerChrysler AG, and BMW, are
[[Page 45827]]
headquartered abroad, with one or more U.S. subsidiaries.\2\ Similarly,
the major tire producers are multinational corporations. Bridgestone/
Firestone and Michelin are headquartered abroad, with U.S. and other
subsidiaries.
---------------------------------------------------------------------------
\2\ For example, Toyota Motor Corporation is the Japanese
parent. Its U.S. sales arm is Toyota Motor Sales U.S.A., Inc. Its
public relations are under Toyota Motor North America, Inc. Toyota
Motor Manufacturing, North America, Inc. oversees manufacturing
companies in North America. Toyota Camrys and Avalons are assembled
by Toyota Motor Manufacturing, Kentucky, Inc. Toyota pickup trucks
are assembled by Toyota Motor Manufacturing, Indiana, Inc. Toyota
Motor Manufacturing Canada Inc. in Ontario assembles Corollas, which
are imported. Toyota's agent is Toyota Technical Center, U.S.A.,
Inc., which also submits certificates of conformity under the Clean
Air Act.
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Safety-related information could be maintained in a variety of
locations by a variety of corporate parents and subsidiaries. For
example, consider a recall in Venezuela conducted by a multinational
corporation based in Europe of vehicles that are substantially similar
to those that are assembled by a subsidiary in Mexico and imported by a
U.S. subsidiary. Information on that foreign recall ordinarily would
not have been directed to these assembling and importing subsidiaries.
To interpret the legislation as applying only to assemblers and
importers would be to eviscerate the TREAD Act, as it would amount to
acceptance of non-reporting. In enacting the TREAD Act, Congress did
not differentiate based on corporate structure and location. Congress
likewise did not expect us to do so.
Moreover, while the TREAD legislation was being formulated, Jacques
Nasser, then the CEO of Ford and as the representative of the
automobile industry, agreed that the industry would notify NHTSA of
recalls in foreign countries involving vehicles sold in the United
States. S. Rep. No. 106-423 at 2-3. Also, the Alliance member companies
(BMW, DaimlerChrysler, Fiat, Ford, General Motors, Isuzu, Mazda,
Mitsubishi, Nissan, Porsche, Toyota, Volkswagen, and Volvo) sent a
letter to NHTSA in which they committed to 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. They did not limit this commitment to recalls and
campaigns documented in the hands of corporate entities that are
assemblers of the products or U.S.-based subsidiaries that are
importers. In light of Mr. Nasser's statement and the Alliance members'
commitment, which did not suggest a narrow meaning of the word
manufacturer, there was no need for the Congress to more expressly
legislate NHTSA's authority.
The commenters' views are even narrower than, and not consistent
with, the definition of manufacturer in Section 30102(a)(5). Under that
section manufacturer means a person--(A) manufacturing or assembling
motor vehicles or equipment or (B) importing them for resale. To give
meaning to all words, particularly the word manufacturing, manufacturer
must be broader than mere assemblers and importers. The term
manufacturer includes an enterprise. See American Heritage Dictionary
(4th ed.)(manufacturer is ``a person, an enterprise, or an entity that
manufactures something.''). This is consistent with our longstanding
interpretation of the Vehicle Safety Act, which, in the course of
numerous amendments, Congress has not rejected. For example, under 49
U.S.C. 30115, a ``manufacturer'' must certify that the vehicle complies
with standards. Under our implementing regulations, the term
manufacturer covers more than the assembler or importer. Under 49 CFR
567.4(g)(1)(i), for example, if a vehicle is assembled by a corporation
that is controlled by another corporation that assumes responsibility
for conformity with the standards, the name of the controlling
corporation may be used as the manufacturer, even though it is not the
assembler. See NHTSA interpretation of October 13, 1981 regarding
PACCAR. This would allow, for example, parent Volkswagen of Germany to
certify vehicles made by a Mexican subsidiary and imported into the
U.S., DaimlerChrysler AG of Germany to certify M Class sport utility
vehicles (SUVs) assembled by a subsidiary in Alabama, and Isuzu Motors
Ltd. (of Japan) to certify Isuzu Rodeos assembled in Indiana. The
commenters' position on the meaning of manufacturer is inconsistent
with 49 CFR 567.4(g)(1)(i).
The enterprise view of a manufacturer is consistent with recent
case law. See Daimler-Benz Aktiengesellschaft v. Olson, 21 S.W. 3d 707;
2000 Tex. App. LEXIS 3985 (2000), cert. den. sub nom. DaimlerChrysler
v. Olson, --S.Ct.--, 70 U.S.L.W. 3707 (2002) (rejecting allegation by
Daimler-Benz that the court lacked jurisdiction over it because it is a
German corporation not doing business in Texas, and stating that
``[o]ur review of this evidence shows Daimler-Benz as a company devoted
to selling its cars worldwide. To achieve this goal, Daimler-Benz has
established subsidiaries in important markets around the globe * * *''
21 S.W.3d at 722-723).
Also, our approach to requiring information from multinational
organizations is consistent with case law in which in a multinational
corporate context, foreign parent, subsidiary and affiliate
corporations of a party corporation have been required to provide
information in litigation. E.g., In re Richardson-Merrell, Inc.
(Bendectin Product Liability Litigation), 97 F.R.D. 481 (S.D. Ohio
1983) (compelling discovery from multinational drug manufacturer's
domestic and foreign subsidiaries). Courts have applied a broad,
multifaceted view of control sufficient to compel responses to
discovery. For example, courts have held that subsidiary and affiliate
corporations responsible for the sale of products in the United States
have sufficient control over their parent's documents in order to be
compelled to produce them. See, Cooper Industries, Inc. v. British
Aerospace, Inc., 102 F.R.D. 918 (S.D. N.Y. 1984) (ordering defendant
that distributed and serviced airplanes in the U.S. and was a wholly
owned corporate affiliate of plane manufacturer British Aerospace
Public Limited Co. to produce documents believed to be in its British
affiliate's files); Afros S.p.A. v. Krauss-Maffei Corp., 113 F.R.D. 127
(D. Del. 1986) (ordering subsidiary to produce German parent
corporation's documents where subsidiary was a wholly owned sales arm
of parent and operating as exclusive seller of parent's products in the
U.S.); Ferber v. Sharp Electronics Corp., 1984 U.S. Dist. LEXIS 24861,
*8, 40 Fed. R. Serv. 2d 950 (S.D.N.Y. 1984) (requiring wholly owned
subsidiary of Japanese corporation that acted as parent's U.S.
distributor and seller with respect to calculators that allegedly
infringed patent to produce information held by parent); In re Uranium
Antitrust Litigation, 480 F. Supp. 1138, 1153 (N.D. Ill. 1979) (party
not required to have actual managerial power over the foreign
corporation, but rather that there be a close coordination between
them); see also, Camden Iron and Metal, Inc. v. Marubeni America Corp.,
138 F.R.D. 438 (D.N.J. 1991) (requiring U.S. based subsidiary
corporation to produce Japanese parent's documents where parent had
participated in negotiations over contract which became subject of
present litigation) citing, Gerling Int'l Ins Co. v. Commissioner of
Internal Revenue, 839 F.2d 131 (3d Cir. 1988); Uniden America Corp. v.
Ericsson Inc., 181 F.R.D. 302, 307 (M.D. N.C. 1998) (ordering party
corporation to produce responsive records of sister, non-party
corporation where companies were owned by same parent, which had
[[Page 45828]]
power over them, shared information regularly, and sister corporation
had provided party corporation documents to assist in present
litigation); Alimenta v. Anheuser-Busch Co., 99 F.R.D. 309, 313 (N.D.
Ga. 1983) (sister corporations acted Aas one'' in transaction);
Soletanche and Rodio, Inc. v. Brown & Lambrecht Earth Movers, Inc., 99
F.R.D. 269, 272 (N.D. Ill. 1983) (requiring production of foreign
parent's documents in patent infringement case where French, non-party,
corporate parent had potential benefit in wholly owned, American
subsidiary's winning offensive litigation); First Nat'l City Bank v.
I.R.S., 271 F.2d 616, 618 (2d Cir. 1959) (upholding subpoena requiring
New York City bank to produce records located in its office in Panama).
Finally, our approach to requiring a multinational corporate
enterprise to provide reports is consistent with the current regulatory
practice of some agencies regarding reporting on foreign and domestic
safety-related matters by multinational corporations. See, e.g., Food
and Drug Administration (FDA) rules regarding post-marketing reporting
of adverse events following FDA approval (21 CFR 314.80) and reporting
adverse events associated with investigational new drugs awaiting FDA
approval (21 CFR 312.32); EPA Office of Pesticide Programs, PRN 98-3
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.epa.gov/opppmsd1/PR Notices/index).
To make our conclusions clear, we are defining ``manufacturer'' in
Section 579.4(c), where other terms used in the early warning rule are
defined.
3. Nexus to the Motor Vehicle Industry
Another frequent comment was that the proposal to include
subsidiaries and affiliates lacked the required nexus to the automotive
industry. The Alliance asserted that the proposal would impose
reporting requirements on unrelated subsidiaries (such as insurance
providers, financing providers, or car rental companies) as well as on
companies that have established limited business relationships with
each other. GM stated that it was unnecessary and unduly burdensome to
require reporting by some 1,000 unrelated subsidiary corporations that
apparently would be required to report consumer complaints or notices
of deaths or injuries if reported to an employee. Nissan characterized
the proposed inclusion of subsidiaries and affiliates as arbitrary and
capricious, and commented that the proposal would likely trigger
undesirable reporting requirements that were unintended by Congress.
We believe that the industry commenters have exaggerated the
burdens that the proposed reporting rule would place on them, their
subsidiaries, and their affiliates. We did not propose to require a
vehicle manufacturer to search the records of its automobile-financing
subsidiary for information responsive to the early warning
requirements. Also, we did not propose to require reporting by such
entities. However, if a vehicle manufacturer decided for any reason to
move the location where it receives or stores relevant vehicle safety-
related records, including its information management system, to such a
subsidiary or affiliate, then the early warning rule would require a
search of that subsidiary's or affiliate's records.
Thus, Honda Power Equipment Manufacturing, Inc., which makes lawn
mowers and related equipment, would not have to search its records or
report, even though it is a subsidiary of American Honda Motor Co.,
Inc. General Motors Corporation would not have to search the records of
General Motors Acceptance Corporation (GMAC) if the manufacturer in the
usual course of business does not keep early warning information in the
files of the automobile-financing subsidiary. However, if GM decided to
change its current practice and store relevant safety information in
the files of GMAC, GM would be required to search that subsidiary's
records when preparing its early warning reports.
To further clarify matters, we have decided to add a new Section
579.3(c), which specifies that, in obtaining the information to be
submitted under the early warning rule, manufacturers, including
parents, subsidiaries, and affiliates, need only review information and
systems where information responsive to Subpart C of Part 579 is kept
in the usual course of business. This clarification, which incorporates
language from Rule 34 of the Federal Rules of Civil Procedure, will
eliminate questions of unintended and unnecessary burdens of reporting
on affiliates and subsidiaries that are not involved in the areas for
which reporting is required.
4. Duplicate Reporting
A number of commenters complained that the proposed rule would
likely result in duplicate reporting of the same events by more than
one entity and thus and cause the early warning information we receive
to be inaccurate. As we made clear in the NPRM, duplicate reporting was
not required. We proposed to allow reporting by either fabricating
manufacturers or importers, so long as the multinational corporation
assures the reporting entity is provided with information in sufficient
time for the reporting entity to submit it NHTSA in a timely manner.
See 66 FR at 66194 and proposed 49 CFR Section 579.3(b). ``In the case
of any report required under this part, compliance by either the
fabricating manufacturer or the importer of the motor vehicle or motor
vehicle equipment shall be considered compliance by both.'' We thought
that this provision would eliminate duplicate reporting from separate
elements of a multinational corporation.
The comments did not discuss this provision directly, but instead,
addressed the subject of duplicate reporting more generally.
Nevertheless, we have considered this provision further in light of
those comments. We believe that there was considerable flexibility
under the proposed rule. We address situations involving complex
structures and multinational corporations below, to explain that
duplicate reporting is not required and to provide guidance on allowed
reporting mechanisms.
Some situations involve joint ventures and production agreements.
In a joint venture, two manufacturers of motor vehicles establish a
separate corporation whose products each of the manufacturers sells
under its own brand name. In the production agreement, one manufacturer
agrees to produce vehicles for another under the second manufacturer's
brand name. An example of a joint venture is New United Motor
Manufacturing Inc. (NUMMI), owned jointly by GM and Toyota, which
produced the Toyota Corolla and the Geo Prizm. Examples of production
agreements are those between Ford and Nissan in which Ford produced the
Nissan Quest as well as the Mercury Villager, and between Isuzu and
Honda, under which Isuzu produced the Isuzu Rodeo as well as the Honda
Passport. A term used for a vehicle such as the Passport is a ``re-
badged vehicle.'' In either case, the agency's certification regulation
requires NUMMI and Ford or Isuzu, as the ``actual assembler of the
vehicle,'' to certify compliance of the vehicles they fabricate, even
if sold by another company. See 49 CFR 567.4(g)(1).
As indicated in the Alliance's comment, NUMMI is strictly a
fabricator, with no sales outlets or repair facilities of its own.
Instead, its products are sold through Toyota and Chevrolet
dealerships. The Alliance feared that the proposed rule might oblige
Toyota to report on claims and complaints received by GM about GM
vehicles, and GM to report on those received by Toyota about Toyota
vehicles. Such duplicate reporting is not required
[[Page 45829]]
under the rule. Reports may be submitted by Toyota as to Toyotas, and
GM as to Chevrolets or Geos. Alternatively, Toyota, GM, or NUMMI may
report as to all such vehicles.
The situation is similar with respect to vehicles manufactured
under production agreements. For example, assume that Isuzu received
consumer complaints about a brake problem in Rodeo vehicles and Honda
received complaints about the problem in Passport vehicles. Both Isuzu
and Honda may report to us the information that they possess about the
vehicles under their own brand names, or the assembler (Isuzu) may
report fully for both companies. Honda is not excused from reporting
the complaint and other relevant information in its information systems
about the Passport on the theory that Honda is not the assembler or
importer of the vehicles.
Although the likelihood is that the brand name owners, rather than
the fabricator (if other than a brand name owner), will receive
consumer contacts about these vehicles, and that the tire brand name
owner will be contacted rather than the tire fabricator, we have
decided to add a provision to Section 579.3(b), similar to Section
573.3(b), that permits an election between the fabricator and the brand
name owner with respect to early warning reporting for vehicles and
equipment. We are adding a definition of ``brand name owner'' to the
Terminology section of the rule, to mean ``a person that markets a
motor vehicle or motor vehicle equipment under its own trade name
whether or not it is the fabricator or importer of the vehicle.'' (This
is similar to the definition of ``new tire brand name owner'' in 49 CFR
574.3(c)(3)). If the fabricator is the reporting entity, it must
identify each company that is a brand name owner covered by the report
(see new Section 579.28(h)), and every identified company must provide
its information to the fabricator in a sufficiently timely fashion to
permit the reporting company to file timely and accurate reports. The
obverse is also true; i.e., if a brand name owner is reporting for
itself, it must identify each fabricating manufacturer covered by the
report.
Another scenario involves a situation where the domestic subsidiary
of a foreign corporation assembles a vehicle that also is assembled
abroad and imported. For example, in some years, Toyota manufactured
some Corolla vehicles in Japan that it exported to the United States
and an American subsidiary manufactured other Corollas in the United
States. Under our rule, due to the parent-subsidiary relationship, each
company may report early warning information to us separately without
duplication, or one or the other may report on behalf of both (we would
prefer a combined report, regardless of which entity actually submits
it).
The next such situation involves foreign subsidiaries of U.S.
corporations that manufacture vehicles that are sold in the U.S. For
example, GM owns Saab of Sweden. Ford owns Volvo, Jaguar, Land Rover,
and Aston Martin. This rule does not regulate corporate structure, and
it does not matter whether the U.S. importer of these brands is a
subsidiary of the foreign corporation or of the U.S. parent (or some
other entity). We understand that consumer contacts about U.S.
activities and events involving these vehicles are reported to
addressees in the United States, whereas communications about foreign
events involving the same or substantially similar vehicles are sent to
addressees abroad. We had assumed that ordinarily the domestic parent
or domestic subsidiary or subsidiaries (separate ones for, e.g., Volvo
and Jaguar) would have the records about the domestic activities and
events and would report to us about both the domestic and the foreign
events after having obtained relevant information from the records
maintained by the foreign entity. We are not requiring duplicate
reports and are not requiring separate reports from the foreign
entities, either limited to the foreign events, or including both
foreign and domestic events. Moreover, the time may come when brands
such as these are assembled by new subsidiaries in foreign countries,
which would add another entity to the mix. We have decided to permit an
election for parents and subsidiaries, similar to that proposed for
fabricators and importers in proposed Section 579.3, and subject to the
same provisos with respect to timeliness and completeness of reporting.
Finally, we consider foreign vehicles that are not exported to the
U.S. but that are substantially similar to vehicles sold in the U.S.
For example, Ford of the U.K. and Vauxhall Motor Co. Ltd. (owned by GM)
\3\ manufacture cars for the U.K. market. Although at present, these
cars generally are not exported to the U.S., some of the U.K. models
are substantially similar to domestic models (our decision with respect
to defining ``substantially similar'' is discussed below). Assume, for
example, the first-generation Mondeo, which was manufactured and sold
in the U.K., is substantially similar to the Ford Contour and Mercury
Mystique, which recently were sold in the U.S. Likewise, assume that
the U.K. Vauxhall Omega and the German Opel Omega are substantially
similar to the Cadillac Catera, which GM previously sold in the U.S.
The assembler is a foreign company. Information about the Mondeo in the
files of Ford of the U.K., and information about the Omega in the files
of Vauxhall or Opel, is likely in Europe. There is no importer of the
vehicle into the U.S. Nonetheless, we would allow Ford (U.S.) \4\ and
GM (U.S.) to obtain and report information about covered claims for
deaths in the Mondeo or the Omega from the files in the U.K. or
Germany. If there were such full reporting, we would not want duplicate
reporting by a foreign company. To address this scenario, we will allow
reporting of claims involving deaths in foreign countries by either the
fabricating manufacturer, the importer, the brand name owner, or a
parent or United States subsidiary of such fabricator, importer or
brand name owner of the motor vehicle or motor vehicle equipment, and
that shall be considered compliance by all persons. Thus, Section
579.3(b) will read as follows:
---------------------------------------------------------------------------
\3\ The GM website (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gm.com) under ``contact us'' refers in
its pull down menu to Vauxhalls, as well as Holdens (manufactured in
Australia) and Saabs.
\4\ Ford's website (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ford.com) reflects its world wide
operations. It has a link that states ``find your local website from
over 120 countries.''
(b) In the case of any report required under subpart C of this
part, compliance by the fabricating manufacturer, the importer, the
brand name owner, or a parent or United States subsidiary of such
fabricator, importer, or brand name owner of the motor vehicle or
motor vehicle equipment shall be considered compliance by all
---------------------------------------------------------------------------
persons.
We believe that the modifications we are announcing today with
respect to the definition of manufacturer will resolve any other
potential problems related to duplicate reporting and will facilitate
reporting in a manner that avoids duplicate reporting.
5. Suggestion to Require a ``control relationship'' Between
Manufacturers and Covered Subsidiaries and Affiliates
Several commenters (including the Alliance, Nissan, Honda, Bendix,
and MEMA) suggested that it was not appropriate to impose reporting
requirements on corporate affiliates or impute to manufacturer
information in the possession of affiliates over whom the manufacturer
does not have a controlling interest. More constructively, Harley-
Davidson stated that it would strive to accumulate early
[[Page 45830]]
warning reporting information from companies it does not control and
would report such information if it learned of it, but might not be
able to compel it from such entities.
The manufacturers did not provide concrete examples. Multinational
vehicle manufacturers, in general, own all or substantial parts of
vehicle manufacturing, importing, and sales subsidiaries. For example,
Nissan Motor Co., Ltd. (Japan) owns one hundred percent of Nissan North
America, Inc. Honda Motor Co., Ltd. owns American Honda Motor Co.,
Inc., a subsidiary of which, Honda of America Mfg., Inc., assembles
Hondas in Marysville, Ohio. Volkswagen AG owns VW of America.
DaimlerChrysler AG owns DaimlerChrysler Corp. (manufacturer of
Chrysler, Dodge, and Jeep vehicles), Mercedes-Benz USA, Inc. (importer
of Mercedes-Benz passenger cars, formerly known as Mercedes-Benz of
North America, Inc.), and Mercedes-Benz U.S. International, Inc.
(assembler of M Class SUVs in Alabama). However, there are other
situations where there is partial ownership. For example, Ford owns a
substantial portion of Mazda Motor Corp. and DaimlerChrysler A.G. of
Mitsubishi Motors Corp.
MEMA proposed a ``bright line test'' in which reporting
requirements would be imposed only in situations in which the
manufacturer has an equity ownership of at least 50 percent in the
affiliate or subsidiary. MEMA did not state the basis for its proposed
``50% ownership'' test. We do not see any reason to adopt a ``50%
ownership'' test in the context of early warning reporting. It is
entirely possible to for one entity effectively to control another with
an ownership share of far less than 50 percent. It is too difficult to
generalize as to the percentage of ownership that is required for the
ability to control. Moreover, there may be multiple corporations above
one another in a hierarchy and the multinational corporation may not be
structured in a strictly vertical mode; there may be horizontal
relationships. The concept of control is adequately addressed by the
terms we used. For example, a parent corporation is defined in Black's
Law Dictionary ``as a corporation that has a controlling interest in
another corporation.'' A subsidiary corporation is defined as a
``corporation in which the parent corporation has a controlling
share.'' Ibid. An affiliate of or person affiliated with a specified
person means a person that directly, or indirectly through one or more
intermediates, controls or is controlled by, or is under common control
with, the person specified. Ordinarily, the persons are corporations.
Securities and Exchange Commission regulation 17 CFR 230.405; see also,
17 CFR 240.10b-18(a)(1). We have adopted this definition.
To the extent that further interpretation of these matters is
needed, we will address them in the context of concrete facts in the
exercise of program administration and discretion.
As indicated earlier in this preamble, we have decided to permit
joint venture manufacturers, rebadging manufacturers, and others to
elect a reporter. As a practical matter, this flexible approach will
enable reporting requirements to be met without resolution of control
issues. Based on our experience with reporting of noncompliances and
defects under section 573.3, we believe that this approach is workable.
6. Proposed Application to Outside Legal Counsel
We proposed in the NPRM to include within the term manufacturer
``any legal counsel retained by the manufacturer.'' See proposed
Section 579.4(a). However, we did not propose to require reporting by
outside counsel to manufacturers. See 66 FR 66194.
Our proposal to include legal counsel in the definition resulted
primarily from our perception that certain ``minimum specificity''
information that is a precondition to reporting claims for death or
injury may not be found in manufacturers' information systems. Initial
claims may be very limited in detail, and it is possible that claims
will not be ``perfected'' until outside counsel have become involved.
To report, manufacturers will need information necessary to satisfy our
``minimum specificity'' requirement, such as the model year of the
vehicle involved in a claim. Manufacturers may need to obtain this
factual information from their outside counsel after those counsel
receive that information.
The provision of this type of fundamental information would not
violate the attorney-client privilege or present other ethical dilemmas
to outside counsel. We are seeking only basic factual allegations.
Many commenters objected to our proposal to include retained legal
counsel in the definition of manufacturer, and none supported it. The
negative commenters included the Alliance, Nissan, Ford, GM, AIAM,
Webb, Harley-Davidson, and RMA. Essentially, they asserted that
inclusion of legal counsel in the definition was unnecessary because,
in virtually all cases, basic relevant information known to outside
counsel was made known to them by the manufacturer that retained them;
that it would be unduly burdensome for outside counsel to be required
to search their records periodically for such information; and that the
requirement to divulge such information might pose ethical problems or
conflicts of interest for lawyers or otherwise violate proscriptions
against divulging privileged information or require disclosure of
attorney's work product. Specifically, Nissan observed that, if the
agency is concerned about abuse of claims of privilege, it could deal
with this potential problem by cautioning against improper privilege
claims rather than by redefining the term ``manufacturer.'' Ford
requested that the term manufacturer be modified to exclude documents
contained in litigation files.
We do not agree that the proposal would impose the sorts of burdens
referred to by the commenters. However, to clarify the matter, we are
adding a sentence to Section 579.28(d) to specify that in situations
involving a claim for death or injury where the manufacturer does not
possess all the information required for ``minimum specificity,'' and
the matter is being handled by outside counsel, the manufacturer must
attempt to obtain the missing information from the outside counsel. In
light of this adjustment, we are eliminating outside counsel from the
definition of manufacturer contained in Section 579.4(c). Where the
corporate manufacturer has the information, which the Alliance claims
is virtually always the case, there will be no obligation to inquire
and no burden. In view of this modification, we believe that it is
unnecessary to address separately the concerns raised by Nissan and
Ford.
7. Constructive Notice of Information Received by Agents
In the preamble to the NPRM, we stated that we proposed to deem
information that is received initially by representatives of
manufacturers (such as their registered agents and outside counsel) to
be information in the constructive possession of the manufacturer, and
to require each manufacturer to ensure that entities it has the ability
to control furnish it with relevant early warning information so that
the manufacturer could make a complete and timely report to NHTSA. We
also stated that we did not propose to require the representatives to
report directly to NHTSA. See 66 FR 66194; see also id. at 66213--
66214. However, while we addressed this subject in the
[[Page 45831]]
preamble, it did not appear in the proposed regulatory text.
Many commenters challenged our statements regarding constructive
possession, arguing that we lack statutory authority to interpret the
term ``possession'' in 49 U.S.C. 30166(m)(4)(B) and claiming that they
cannot require entities that they do not control to provide them with
information. We disagree. As discussed above, by virtue of our
authority to conduct substantive rulemaking to implement the early
warning reporting requirements, we are empowered to interpret statutory
terms and promulgate a rule containing our interpretation.
The Vehicle Safety Act itself provides at Section 30164 for foreign
manufacturers to appoint agents for the service of notices and process
in administrative and judicial proceedings, and specifically states
that ``service on the agent is deemed to be service on the
manufacturer.'' Id. at 30164(b). Likewise, a common requirement under
state law is the appointment of registered agents, and corporations are
deemed to be served upon service on the registered agent. Therefore, we
have concluded that, as in Section 30164(b), it is appropriate to
impute the information contained in such claims to the manufacturer who
is served via the appointed agent. Accordingly, in this final rule, we
are adding a specification (Section 579.28(e)) stating that receipt of
a claim by an agent of a manufacturer registered under State law or
designated under the Vehicle Safety Act by a manufacturer offering
vehicles or equipment for import shall be deemed received by the
manufacturer. However, upon further consideration, we have concluded
that it is not necessary to refer to the concept of constructive
possession in the terminology or application sections of this rule. The
provisions of this rule that require reporting of information in the
possession of manufacturers and their subsidiaries, parents, and
affiliates with respect to vehicles and equipment that they offer for
sale in the United States and foreign vehicles or equipment that are
substantially similar to such vehicles or equipment will suffice to
ensure that we receive relevant early warning information from
appropriate sources.
B. Manufacturers of Motor Vehicles
The TREAD Act provides for the agency to require manufacturers of
motor vehicles \5\ to submit information that may assist in the
identification of safety-related defects. We must decide which
manufacturers of motor vehicles would be required to submit reports
under this rule, and whether different reporting requirements should
apply to various categories of manufacturers. Section 30166(m)(3) does
not exempt any manufacturer of motor vehicles from its coverage. On the
other hand, it provides substantial discretion to the agency. The word
``may'' is used at several points in the statute. In addition, the
agency's ability to use the information submitted is a statutory
concern.
---------------------------------------------------------------------------
\5\ The term ``motor vehicle'' is a broad one. The statutory
definition of ``motor vehicle'' (49 U.S.C. 30102(a)(6)) has been the
subject of numerous interpretations since 1966.
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One of the threshold questions in this rulemaking is whether the
agency should exercise its discretion to defer the imposition of some
or all potential early warning reporting requirements on some classes
of manufacturers. The early warning regulation will be a new
regulation, and inevitably the agency and regulated entities will face
some issues in implementing it. It would be counterproductive to
require the submission of more information than we could beneficially
review or to impose impracticable requirements, particularly on small
manufacturers. We have concluded that we should phase in the early
warning reporting requirements and that, for the most part, it would be
appropriate to focus first on larger volume manufacturers and on
information regarding incidents and activities in the United States, as
contrasted to those occurring in foreign countries.
Vehicles produced in small quantities have a smaller overall impact
upon safety than large production vehicles, as we have frequently noted
in providing temporary exemptions from one of more of the Federal motor
vehicle safety standards under 49 U.S.C. 30113. Although we would not
expect the volume of reports from any individual small volume
manufacturer to be overwhelming if we were to require comprehensive
reporting by smaller manufacturers, there would be some burden on them.
More important, our interactions with, and review of submissions by,
the large number of small manufacturers would divert the agency's
resources from reports submitted by high volume manufacturers involving
potential safety defects that could affect a far greater number of
vehicles and thus have a greater impact on safety.
The final rule excludes from most of the reporting requirements any
vehicle manufacturer that manufactures for sale, offers for sale,
imports, or sells, in the United States, fewer than 500 vehicles of
each specified category in the year of the reporting period and in each
of the two calendar years preceding the reporting period. This
exclusion will apply to most manufacturers of multistage vehicles and
alterers since the vast majority of them manufacture or sell fewer than
500 vehicles annually.
We are also excluding registered importers (RIs) of vehicles not
originally manufactured to comply with Federal motor vehicle safety
standards from most of the reporting requirements. RIs ordinarily would
not have information that would be useful because most import limited
numbers of vehicles, most of which are manufactured by companies who
generally report to us, and the owners of most of these vehicles
probably would not report problems to the RI.
However, these small-volume manufacturers and RIs are not exempt
from the requirements, addressed below, to report to us certain
specified information regarding incidents involving death(s) occurring
in the United States that are identified in claims against and received
by the manufacturer or that are identified in notices sent to the
manufacturer where the notice alleges or proves that a death was caused
by a possible defect in the manufacturer's vehicle, together with
information on deaths occurring in foreign countries that are
identified in claims against the manufacturer involving a vehicle that
is identical or substantially similar to a vehicle that the
manufacturer has offered for sale in the United States. With respect to
all such reported deaths, all manufacturers will have to provide
certain information regarding the underlying incident, as described in
greater detail below. All manufacturers will also have to provide
copies of documents related to customer satisfaction campaigns,
consumer advisories, recalls, and other safety activities under new
Section 579.5. As discussed in Section III.A.4 above, duplicate
reporting is not required. The commenters on the NPRM did not object to
the concept of limited reporting by small-volume vehicle manufacturers.
For those motor vehicle manufacturers that are not excluded from
full reporting based on low levels of sales in the United States, we
are establishing separate reporting requirements based on the category
of vehicle produced. We proposed five categories of vehicles: light
vehicles, medium-heavy vehicles, buses, motorcycles, and trailers. In
the final rule, we are adopting four; the final rule combines the
proposed categories of
[[Page 45832]]
medium-heavy vehicles and buses into one category. Each category has
components and systems that distinguish it from the other three
categories, and which may develop safety-related problems unique to
that category. Therefore, we shall require different information
regarding each category of vehicle, which will help to reduce the
burdensomeness of the rule.
Under the rule, a light vehicle is any motor vehicle, except a bus,
trailer, or motorcycle, with a gross vehicle weight rating (GVWR) of
10,000 lbs. or less. Medium-heavy vehicles include trucks and
multipurpose passenger vehicles with a GVWR over 10,000 lbs., and buses
regardless of GVWR (including school buses). Trailers are separately
categorized regardless of GVWR. Motorcycles include any two- or three-
wheeled vehicle meeting the definition of motorcycle in 49 CFR
571.3(b).
We asked for comments on whether an annual aggregate production,
importation, or sales of 500 vehicles in the United States is an
appropriate figure upon which to base this distinction, whether a
manufacturer's eligibility for these lesser reporting requirements
should be determined based upon its production in the two calendar
years preceding the report or whether a shorter, longer, or different
period would be appropriate, and whether small-volume vehicle
manufacturers should be required to provide other data and information
in addition to that relating to deaths.
RVIA commented that recreational vehicle (RV) manufacturers should
be exempt from all early warning reporting, or, at most, only those
requirements that are adopted for manufacturers of fewer than 500 motor
vehicles. NTEA, Gillig, and WASTEC commented that the threshold should
be 10,000 vehicles per year, the same as that governing eligibility to
apply for temporary exemptions under Part 555 on grounds that
compliance would cause substantial economic hardship, which they did
not demonstrate, or, alternatively, 2,500 vehicles per year, the same
as that governing eligibility to apply under Part 555 for other kinds
of temporary exemptions. The rationale for these suggestions is that
many companies producing multi-stage trucks and RVs in quantities
greater than 500 are nevertheless ``small businesses'' by the criteria
of the Small Business Administration (SBA) (13 CFR 121.201 (2000)).
We have considered these comments and have concluded that the 500
units is an appropriate demarcation point between larger and smaller
manufacturers. We recognize that some manufacturers of more than 500
vehicles will be ``small businesses'' under the SBA criteria. However,
that does not in itself provide a basis for exempting them from the
more comprehensive reporting requirements. We have conducted
investigations into alleged defects in products manufactured by
relatively small businesses that have led to safety recalls and we
believe that it is appropriate to obtain full early warning information
from companies producing 500 or more vehicles. If experience shows that
we do not get valuable information from relatively small vehicle
manufacturers, we can and will adjust the threshold in the future.
We also received comments on our proposed five categories of
vehicles. Utilimaster commented that it, like other delivery van
producers, manufactures vehicles in both the over and under 10,000 lb.
GVWR categories. It commented that ``commercial delivery vans under
10,000 lbs. GVWR have little in common with cars, sport utility
vehicles and pickup trucks,'' and should not be in the same reporting
category as these vehicles. It believed that if the final rule is
adopted as proposed, it would be difficult to try to conform the
company's internal records systems and reporting obligations to the
discrete systems and component codes and differences in parts specified
in the light and medium-heavy reporting categories. It argued that
``there should be only one set of failure codes and related numerical
reporting.''
The use of GVWR to delineate the applicability of requirements
adopted by NHTSA, other Federal agencies, and state governments is a
common practice that has stood the test of time. In any event, the
coding of systems and components and related numerical reporting for
light and medium-heavy vehicles are very similar, as is discussed
below. In our view, this similarity will avoid, or at least minimize,
any problems that companies such as Utilimaster might have had.
RVIA also argued that reporting should be limited to the chassis
portion of a RV and exclude living quarters. We disagree. If we adopted
such a limitation, fires that arose in the living quarters would not be
reported. We note that the Vehicle Safety Act provides that ``motor
vehicle safety'' includes ``nonoperational safety of a motor vehicle.''
49 U.S.C. 30102(a)(8).
C. Manufacturers of Motor Vehicle Equipment
The TREAD Act also provides for the agency to require manufacturers
of motor vehicle equipment to submit early warning reporting
information that may assist in the identification of safety-related
defects. ``Motor vehicle equipment'' is defined in 49 U.S.C.
30102(a)(7), and consists of ``original equipment'' (OE) and
``replacement equipment.'' These two terms are currently defined in 49
CFR 579.4. We are not changing the definitions, but we are simplifying
the previous language in new Section 579.4(c) to make it more readable.
1. Original Equipment
There are approximately 10,000 to 14,000 individual items of OE in
a contemporary passenger car. Some are fabricated by the vehicle
manufacturer, some by independent parts manufacturers, and some parts
are incorporated into systems or modules assembled by various
suppliers. There is a growing trend to packaging individual parts into
a single unit, or module. For example, a steering wheel assembly may
include an air bag, horn control, turn signal control, wiper control,
ignition switch, cruise control, lighting controls, as well as
associated wiring. Many of these units are assembled by a supplier,
often with components from various manufacturers. Each of these
fabricators or assemblers is also a manufacturer of motor vehicle
equipment.
When a component or module installed as OE on a vehicle fails,
generally vehicle owners will complain or file a claim with the entity
that has manufactured and warranted the vehicle, rather than the
assembler of the module or the manufacturers of the individual parts,
who in most instances are unknown to the vehicle owner. In view of
this, in their comments to the ANPRM, the Alliance, Ford, and AIAM
specifically supported exclusion of OE manufacturers (OEMs) from early
warning reporting requirements. OEMs, however, are not exempt from
defect reporting requirements. Pursuant to 49 CFR 573.3(f), if an OEM
sells an item of OE to more than one vehicle manufacturer and a defect
or noncompliance is decided to exist in that OE, the OEM is required to
notify us (as are the manufacturers of the vehicles in which the OE is
installed). If the defective OE is used in the vehicles of only one
vehicle manufacturer, the OEM may notify us on behalf of both itself
and the vehicle manufacturer (Section 573.3(e)) in either case, the OEM
may also be the party remedying the safety defect or the
noncompliance). Thus, OEMs can and do make determinations that OE
contains safety-related defects, and they will have some information of
the type that the TREAD Act authorizes us to
[[Page 45833]]
require, such as claims alleging failures of their products. For this
reason, we did not propose to totally exempt OEMs from early warning
reporting.
We tentatively decided for the NPRM that most meaningful
information about possible defects is more likely to come to the
attention of the vehicle manufacturer earlier than it would to the OEM.
However, we wanted to be certain that we obtain information regarding
deaths attributed to OE. Accordingly, in the NPRM, we proposed that
OEMs be exempt from all reporting requirements regarding OE they
manufacture, except for reporting to us regarding deaths in the same
manner as small volume vehicle manufacturers, discussed above. Of
course, the vehicle manufacturer would be required to report fully in
its capacity as a vehicle manufacturer, even if the vehicle
manufacturer believed that the problem was the responsibility of the
OEM.
NTEA suggested that, in the case of work-related equipment that is
installed as original equipment, defects or alleged defects only be
reported if they are ``germane to the operation of the motor vehicle.''
It gave, as an example, defects occurring in the operation or design of
work-producing equipment such as a ladder or crane. Because such a
defect ``has nothing to do with the safe operation of the vehicle,'' it
should not have to be reported to NHTSA.'' We disagree. As noted above,
the statutory term ``motor vehicle safety'' includes ``nonoperational
safety of a motor vehicle.'' There are certain work-performing items of
equipment whose failure can have serious safety consequences. For
example, a dump truck's dump body hydraulic control valve may
malfunction while the truck is moving and the dump body move up,
scattering materials on the roadway and blocking the driver's rearward
view of the road. Such a malfunction could lead to a death, yet under
the NTEA approach, it would not be reported to NHTSA because the
control valve does not relate to the operation of the dump truck as a
motor vehicle. Also, a falling crane could hit a vehicle or create a
dangerous distraction. It is not possible to define for the many types
of specialty trucks and vehicles what work-performing equipment should
not be included; any attempt to exclude an item of equipment will
inevitably lead to confusion as to what should be reported. In any
event, in view of the limited reporting required, NTEA has not shown
that including the rule would impose much of a burden.
2. Replacement Equipment
Replacement equipment comprises an even broader universe of parts
than OE. It includes all motor vehicle equipment other than OE. Not
only does the term have the literal meaning of equipment that is
intended to replace OE, it also includes accessory equipment and ``off-
vehicle equipment'' that is not part of a motor vehicle, such as jacks
and most child restraints. Manufacturers of replacement equipment are
within the scope of the early warning reporting provisions of the
statute.
Some replacement equipment items are critically important from a
safety perspective, while others have less of a safety nexus. Child
restraints and tires are critical safety items. Therefore, we proposed
that all manufacturers of child restraints and tires be required to
provide the full range of information and documents proposed.
There is a large number of manufacturers of other types of
replacement equipment. Much of this equipment is imported by or for
auto parts houses such as J.C. Whitney, retailers such as Pep Boys, or
general merchandisers. An importer for resale is considered a
manufacturer under the statute. See 49 U.S.C. 30102(a)(5)(B). A large
universe of entities would be subject to multiple requirements if we
were to fully apply early warning reporting requirements to all
fabricators and importers of replacement equipment.
Therefore, at least for purposes of this initial rulemaking, we
proposed that, as with smaller volume vehicle manufacturers and
original equipment manufacturers, manufacturers of other types of
replacement equipment only be required to report to us claims regarding
deaths and in notices regarding deaths allegedly due to possible
defects in their products. We are adopting our proposal. However, we
may revisit these limitations under our periodic review of the rule.
In the preamble to the NPRM, we cited retroreflective motorcycle
rider apparel as an example of off-road motor vehicle equipment. The
Motorcycle Rider Foundation posted a notice on its website urging
readers to ``Fight NHTSA's Bid For Clothing Control!,'' claiming that
``NHTSA has no statutory authority for this power grab.'' Contrary to
the Foundation's claim, ``motor vehicle equipment'' has been defined by
statute (currently 49 U.S.C. 30102(a)(7)(C)) since 1966 to include
``any * * * apparel * * * that is not a * * * part * * * of a motor
vehicle and is * * * intended to be used only to safeguard * * *
highway users against risk of accident, injury, or death.'' We have
not, and we do not intend to, prescribe standards or requirements for
motorcycle apparel other than protective headgear, which has long been
subject to FMVSS No. 218. The proposed rule would not, and the final
rule does not, control motorcycle clothing. It is extremely unlikely
that any such apparel would be the subject of a claim involving a
death.
3. Tires
Tires, of course, are essential items of motor vehicle equipment,
and tire manufacturers have the duty to conduct notification and remedy
campaigns and to address defective or noncompliant tires, whether sold
in the aftermarket or installed on new vehicles (see current 49 CFR
579.5(b)). Tire brand name owners (e.g., house brands) are also
considered manufacturers (49 U.S.C. 30102(b)(1)(E)) and have the same
defect and noncompliance reporting requirements as the actual
fabricators of the tires (49 CFR 573.3(d)). We proposed that tire brand
name owners be required to report, as well as tire manufacturers.
RMA asked that the final rule clarify that, where the tire brand
owner is not the fabricating manufacturer, only the tire brand owner
need report. We concur with this suggestion; the type of information
and data we are seeking for early warning purposes is not likely to be
received by the fabricating manufacturer when tires are marketed under
the name of the tire brand owner. Accordingly, as adopted, Section
579.3(b) reads in pertinent part: ``In the case of any report required
under this part, compliance by either the fabricating manufacturer * *
* or brand name owner of the * * * motor vehicle equipment shall be
considered compliance by all persons.''
4. Definition of ``Equipment''
We proposed to retain the existing definitions of Part 579 for
``original equipment'' and ``replacement equipment,'' in slightly
edited form. These definitions of original equipment and replacement
equipment are based on 49 CFR 579.4 (as it appears in 49 CFR Parts 400-
999, revised as of October 1, 2001) and are many years old. We are
adopting them as proposed.
The definition of ``original equipment'' includes ``equipment
installed by the dealer or distributor with the express authorization
of the motor vehicle manufacturer.'' Harley-Davidson observed that it
has more than 2,000 suppliers and stated some items manufactured as
original equipment or replacement parts for its motorcycles may find
their way into the production
[[Page 45834]]
of other motorcycle brands or the general stream of commerce. Harley-
Davidson also observed that its catalog runs several hundred pages with
thousands of separate replacement and custom parts. It expressed the
belief that NHTSA would not want production reports on each and every
one of these, and that it would not make sense to submit reports on
these items unless claims involving them were actually received.
Accordingly, the comment recommended that a manufacturer not be
required to list all production in its reports, or report at all except
when a reportable incident has occurred.
We believe that the proposed rule was clear. Any manufacturer of
motorcycles, original motorcycle equipment, and motorcycle replacement
equipment is responsible for reporting incidents involving deaths based
on claims it receives and on notices it receives alleging a defect in
its product. But it is only with respect to motorcycles themselves that
the manufacturer is responsible for reporting additional and specific
categories of information to NHTSA under Section 579.23. Also, the
motorcycle manufacturer is not responsible for reporting regarding
equipment that is not original equipment, that is to say, equipment
installed by a dealer without the manufacturer's express authorization.
With regard to replacement equipment, under the rule, manufacturers
of replacement equipment are required to report any claims or notices
of death allegedly due to a defect. In its role as a manufacturer of
replacement equipment, Harley-Davidson would not have to report an
incident unless it receives a claim or notice. See Section 579.27.
IV. Information That Must Be Reported
Section 30166(m)(3)(A) provides for NHTSA to require manufacturers
to report information which concerns data on ``claims submitted to the
manufacturer for serious injuries (including death) and aggregate
statistical data on property damage from alleged defects in a motor
vehicle or in motor vehicle equipment,'' and on ``customer satisfaction
campaigns, consumer advisories, recalls or other activity involving the
repair or replacement of motor vehicles or items of motor vehicle
equipment.'' Section 30166(m)(3)(B) authorizes us to require
manufacturers to report other ``such information'' that may assist in
the identification of safety defects. Finally, Section 30166(m)(3)(C)
provides for reporting of incidents, of which the manufacturer receives
actual notice, involving deaths or serious injuries which are alleged
or proven to have been caused by a possible defect in the
manufacturer's vehicle or equipment in the United States, or in a
foreign country when the possible defect is in a vehicle or equipment
identical or substantially similar to that sold in the United States.
A. Production Information
For each reporting period, we proposed to require manufacturers
that manufactured for sale, offered for sale, imported, or sold in the
United States 500 or more vehicles of specified categories, and all
manufacturers of child restraint systems and tires, to provide
information on the volume of production of their products. Production
numbers are needed because the agency's trend analyses frequently are
normalized to rates, such as the number of claims per unit of
production. We proposed to require these manufacturers to submit the
following information with respect to each model and model year of
vehicle manufactured in the calendar year of the reporting period and
the nine model years prior to the earliest model year of the reporting
period, including models no longer in production: the manufacturer's
name, the quarterly reporting period, the make, the model, the model
year, the current model year production to the end of the reporting
period, and the total model year production for all model years for
which production has ceased. See 66 FR 66194.
Under the NPRM, for each model of vehicles that are manufactured
with more than one type of fuel system, and for each model of medium-
heavy vehicles with more than one type of service brake system, the
information required by this subsection would have been reported
separately. In the final rule, this distinction between types of fuel
systems has not been adopted for light vehicles, and applies only to
medium-heavy vehicles including buses. The final rule distinguishes
between gasoline powered, diesel powered, and other. The distinction
between types of service brake systems (hydraulic and air) applies to
medium-heavy vehicles including buses, and trailers.
In its analysis of potential defects, ODI has found it useful to
compare problems in similar types of vehicles. The reporting category
of ``light vehicles'' covers more types of vehicles than are defined in
49 CFR 571.3(b). For example, ``light vehicle'' includes passenger
cars, various types of multipurpose passenger vehicles (e.g., minivans,
vans, SUVs), and some trucks. Therefore, we have concluded that, in
addition to identifying the make and model of a vehicle, manufacturers
of light vehicles must also indicate the type classification of the
vehicle as defined in Section 571.3(b) (i.e., passenger car,
multipurpose passenger vehicle, or truck) that appears on the vehicle's
label pursuant to Section 567.4(g)(7) certifying compliance with all
applicable FMVSS. Manufacturers would also report production data for
incomplete light vehicles. An ``incomplete light vehicle'' is an
incomplete vehicle as defined by Section 568.3 which, when completed,
will be a light vehicle. For similar reasons, we are requiring each
light vehicle manufacturer to identify the ``platform'' of the vehicle,
using its own nomenclature, as discussed in Section IV.H.1.
Similar considerations apply to child restraint systems. Therefore,
we are requiring manufacturers of those products to indicate the
``type'' of child restraint system in their production reports. We are
establishing three separate categories, as follows: ``Rear-facing
infant seat'' means a child restraint system that positions a child to
face in the direction opposite to the normal direction of travel of the
motor vehicle and is designed to hold children up to 20 pounds;
``Booster seat'' means, as defined in S4 of FMVSS No. 213, ``either a
backless child restraint system or a belt-positioning seat;'' and
``Other'' encompasses all other child restraint systems not included in
the first two categories.
We recognize that manufacturers of medium-heavy trucks, buses, and
trailers generally do not specify ``model years'' for their products.
For purposes of this rule, to avoid confusion, we are defining the term
``model year'' for those vehicles to mean the year the vehicle was
produced if no model year has been assigned to it. For equipment,
``model year'' will mean the calendar year the item was produced. We
are using the term ``produced'' rather than ``manufactured'' to make it
clear that we are not referring to the year a product was imported into
the United States.
With respect to tires and child restraint systems, production data
would only need to be submitted for a period of five years (i.e., the
year of the reporting period and the four previous years). The ten-year
period would still apply to vehicle manufacturers.
B. Definition of ``Claim''
Section 30166(m)(3)(A) refers to claims data. The ANPRM stated
that, in order to achieve the goals of the TREAD
[[Page 45835]]
Act, the term ``claim'' must be construed broadly and provided some
examples.
We researched the definition of claim, considered comments received
in response to the ANPRM, and considered our investigatory experience
with requests for claims information when we issued the NPRM.
As noted in the NPRM, case law provides interpretations of the word
``claim'' in various contexts. In a Federal law context, `` ``claim''
is something more than mere notice of an accident and an injury. The
term `claim' contemplates, in general usage, a demand for payment or
relief.'' Avril v. U.S., 461 F.2d 1090, 1091 (9th Cir. 1972). See also,
Conoco, Inc. v. United States, 39 Env't. Rep. Cas. (BNA) 1541 (N.D. La.
1994)(written request for compensation for damages or costs); 31 U.S.C.
3729(c) (claim involves request for demand for money or property).
State case law also provides a definition of the word ``claim.''
For example, Fireman's Fund Insurance Co. v. The Superior Court of Los
Angeles County, 65 Cal. App. 4th 1205, 1216 (1997), noted that a claim
encompasses more than a suit:
``claim'' can be any number of things, none of which rise to the
formal level of a suit--it may be a demand for payment communicated
in a letter, or a document filed to protect an injured party's right
to sue a governmental entity, or the document used to initiate a
wide variety of administrative proceedings.
Other state law cases have further addressed the meaning of
``claim.'' Safeco Surplus Lines Co. v. Employer's Reinsurance Corp., 11
Cal. App. 4th 1403, 1407 (1992), held that a ``claim'' is ``the
assertion, demand or challenge of something as a right; the assertion
of a liability to the party making it do some service or pay a sum of
money.'' Phoenix Ins. Co. v. Sukut Construction Co., 136 Cal. App. 3d
673, 677 (1982), stated that ``a claim both in its ordinary meaning and
as interpreted by the courts, is a demand for something as a right, or
as due and a formal lawsuit is not required before a claim is made.''
We explained that the definition of claim should be broad, and meet
our needs under the TREAD Act. We proposed the following definition for
claim (at 66 FR 66195-96):
A written request or demand for relief, including money or other
compensation, assumption of expenditures, or equitable relief,
related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or a fire. Claim includes but is not limited to a demand
in the absence of a lawsuit, a complaint initiating a lawsuit, an
assertion or notice of litigation, a settlement, covenant not to sue
or release of liability in the absence of a written demand, and a
subrogation request. A claim exists regardless of any denial or
refusal to pay it, and regardless of whether it has been settled or
resolved in the manufacturer's favor. The existence of a claim may
not be conditioned on the receipt of anything beyond the document
stating a claim.
The proposed definition of claim addressed the nature of a
reportable claim and the subject matter that was covered. This was set
forth in one definition to simplify matters and avoid to the extent
possible complex definitional structures. First, a reportable claim
would be a written request or demand for relief, including money or
other compensation, assumption of expenditures, or equitable relief. It
would include, but not be limited to, a demand in the absence of a
lawsuit, a complaint initiating a lawsuit, an assertion or notice of
litigation, a settlement, covenant not to sue or release of liability
in the absence of a written demand, and a subrogation request. A claim
would exist regardless of any denial or refusal to pay it, and
regardless of whether it has been settled or resolved in the
manufacturer's favor. Finally, the existence of a claim could not be
conditioned on the receipt of anything beyond the document stating a
claim. The last two sentences of our proposal were designed to assure
that all relevant claims are provided to us. This would preclude
attempts, similar to those that have been made by some manufacturers in
our investigations, to evade reporting claims by conditioning them on
receipt of parts, or their own assessments of the merits of claims.
Second, as to the subject matter, we referred to a motor vehicle crash,
accident, component or system failure, and a fire, as these are events
that have safety implications. The proposed definition would exclude,
for example, events with which the rule is not concerned, such as
injuries in manufacturers' factories. Finally, the definition did not
address what the claim must involve, allege or contain, as those
matters are not parts of a definition of a claim. They are addressed
below, as are warranties.
PC, CU, the Alliance, AIAM, Nissan, Honda, JPMA, RMA, and Harley-
Davidson provided comments on this definition.
PC expressed approval of the proposed definition, with the caveat
that the agency should also require the submission of basic information
concerning lawsuits, such as the date the complaint was filed, the
alleged injury, and the eventual disposition of the case. The
additional information proposed by PC would not be necessary for early
warning screening. The date the complaint was filed and the eventual
disposition of the matter are not important to NHTSA for early warning
purposes. NHTSA is concerned with the incident and using the basic
information about the incident to identify a potential defect trend,
not the outcome of litigation, which often occurs years later.
The Alliance recommended an alternative definition for a claim. It
suggested a claim means:
a written request or written demand for relief, including money or
other compensation, assumption of expenditures, or equitable relief,
related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or fire originating in a motor vehicle, that is sent to
the manufacturer from the claimant or his/her authorized
representative. Claim includes a demand in the absence of a lawsuit,
an assertion or notice of litigation, or a subrogation request.
In support of its definition, the Alliance commented, and RMA
concurred, that the definition of ``claim'' must specify more clearly
that a claim must be in writing, regardless of whether it is a
``request'' or a ``demand.'' Furthermore, the Alliance stated that the
definition should limit fire-related claims to those allegedly
originating in a motor vehicle, to avoid the need to report claims
related to fires in factories or offices of a manufacturer. The
Alliance suggested that the definition must clarify that the claim must
originate outside the company by the claimant or the claimant's
authorized representative. The Alliance added that some of the types of
activities included in NHTSA's proposed definition seemed
inappropriate, such as ``settlement,'' or ``covenant not to sue,''
which is not a claim and will not be processed or coded as a claim by
the manufacturer's ordinary claims-processing functions. It noted that
a ``claim'' precedes a ``settlement'' or ``covenant not to sue,'' so it
saw no need to include those terms in the definition. Finally, the
Alliance submitted that a class action suit should be reported as one
claim, rather than per member, because there is no way to ascertain the
size of the class.
Harley-Davidson observed that the proposed definition of ``claim,''
unlike the proposed definition of ``warranty claim,'' is not
necessarily limited to claims presented to the manufacturer, and should
be revised accordingly.
JPMA requested the agency clarify that manufacturers need not
report requests for free replacement components, such as harness clips,
[[Page 45836]]
broken in collisions where the claim does not allege or suggest that
the broken component had anything to do with the injuries sustained in
the collision.
We have carefully considered these comments. The Alliance and RMA
suggested that NHTSA clarify that the claim be made in writing. The
proposal defines a claim in part as ``a written request or demand for
relief.'' The Alliance asked whether a ``demand'' also has to be in
writing, asserting that some may conclude that only a ``request'' has
to be in writing. We meant that ``written'' applies to and modifies
both requests and demands, but since there appears to be some confusion
as to our intent we are adding ``written'' before ``demand.''
The Alliance, RMA and Harley-Davidson also suggested that a claim
must be one that is sent to the manufacturer from the claimant or the
claimant's authorized representative. As noted in the definitions of
claim from cases cited above, transmission of the claim is not part of
the definition of claim. We believe that it is implicit that a claim
would not have to be reported if it had not been received by the
manufacturer or its registered agent. Nonetheless, we are adding to the
reporting requirements the element that the claim must be one that is
received by the manufacturer.
A third suggestion submitted by the Alliance is for NHTSA to delete
the terms such as ``settlement,'' or ``covenant not to sue,'' because a
manufacturer would have to receive a claim prior to these types of
activities being undertaken. We disagree with this assertion. A
settlement agreement or a covenant not to sue may have been preceded by
only an oral demand upon the manufacturer. Oral demands need not be
reported. Thus, the exclusion of settlements or covenants not to sue
could result in underreporting.
The Alliance also suggested that a class action suit be counted as
one claim because it is impossible to determine the size of the class.
We agree in part with this comment. Rarely are class action suits
brought where the claims are based on fatalities or injuries. In any
event, for such class actions, each separate class action suit would be
considered as a single claim, at a minimum. However, if a class action
suit against a manufacturer does identify specific persons (excluding
John and Jane Does) who died or were injured, the manufacturer should
report on each of these claims separately. Similarly, in instances
where there is a class action involving property damage, each
identified class representative should be reported as presenting a
separate claim.
We have considered cross-claims and third-party claims. A
manufacturer would not need to report any claim, including a cross-
claim, if it had already reported a claim involving the incident.
However, it would have to report a third-party claim against it if it
had not previously reported the incident. This would assure that we
receive the information about the incident underlying the claim. For
example, the original defendant might be an automotive dealership that
third-partied the manufacturer as a defendant to a suit.
The vehicle manufacturers also raised comments on whether claims
arising out of some fires should be reported. The Alliance commented
that the inclusion of ``fire'' in the definition could be construed as
covering claims received by a manufacturer related to fires that did
not originate in motor vehicles. The intent of NHTSA's proposed
definition was that the fire must relate to a motor vehicle or item of
motor vehicle equipment; we did not intend to require reports on office
or factory fires. Nonetheless, to clarify reporting of claims due to a
fire, we are modifying the proposal to specify that it includes fires
originating in or from a motor vehicle or a substance that leaked from
a motor vehicle. This would cover, for example, fires from gasoline
that spilled in a crash.
We also received comments on environmental claims. In general,
NHTSA does not address issues involving alleged injury due to long-term
environmental exposure. However, there can be overlaps between vehicle
safety and environmental issues, and therefore we are not excluding all
environmentally-related claims. For example, a vehicle fuel-release
problem may be cognizable under the Clean Air Act, tort law, and the
Vehicle Safety Act. Unfortunately, the comments we received on this
issue lacked detail and did not suggest how to exclude irrelevant
claims, although some examples were provided. For example, Nissan and
the Alliance stated that exposure to asbestos in brake linings could
lead to a claim related to environmental exposure. We are also aware of
issues related to emissions of volatile organic compounds from vehicle
interiors and of end-of-life environmental claims such as those related
to disposal. This could include claims associated with the disposal of
tires, batteries and mercury-containing components, as well as other
vehicle residuals such as in junkyard operations (e.g., incineration).
We have decided that these types of claims do not have to be reported
to NHTSA under the early warning rule and are adding an exclusion to
the definition of ``claim'' to reflect this. The reason is that these
claims do not relate to the safety of a motor vehicle that is or may be
operated. They would not aid in spotting a defect trend and are not the
basis of past Vehicle Safety Act recalls.
JPMA, which represents child restraint manufacturers, commented
that NHTSA should clarify that manufacturers of this equipment need not
report requests for free replacement components, such as harness clips,
broken in collisions where the claim does not allege or suggest that
the broken component had anything to do with deaths or injuries or
property damage. This comment is not consistent with the structure of
the rule. Under the rule, manufacturers are required to report claims
in the absence of an allegation of a specific failure of a component or
causation. As discussed in the NPRM, many claims do not include
specific allegations, but merely include general allegations of product
failure. This is a type of information that NHTSA is seeking to help it
identify defect trends. We believe that by requiring the reporting of
all claims that fall within the definition, NHTSA will capture the
information most likely to identify a potential defect trend. Of
course, if the consumer's request was not related to a crash, such as a
statement that a component was lost and the consumer requested a free
replacement, the manufacturer would not report that request.
Therefore, based upon the foregoing we are defining ``claim'' as:
A written request or written demand for relief, including money
or other compensation, assumption of expenditures, or equitable
relief, related to a motor vehicle crash, accident, the failure of a
component or system of a vehicle or an item of motor vehicle
equipment, or a fire originating in or from a motor vehicle or a
substance that leaked from a motor vehicle. Claim includes, but is
not limited to, a demand in the absence of a lawsuit, a complaint
initiating a lawsuit, an assertion or notice of litigation, a
settlement, covenant not to sue or release of liability in the
absence of a written demand, and a subrogation request. A claim
exists regardless of any denial or refusal to pay it, and regardless
of whether it has been settled or resolved in the manufacturer's
favor. The existence of a claim may not be conditioned on the
receipt of anything beyond the document(s) stating a claim. Claim
does not include demands related to asbestos exposure, to emissions
of volatile organic compounds from vehicle interiors, or to end-of-
life disposal of vehicles, parts or components of vehicles,
equipment, or parts or components of equipment.
[[Page 45837]]
C. Definition of ``Notice''
Section 30166(m)(3)(C) provides for the reporting of ``all
incidents of which the manufacturer receives actual notice,'' involving
fatalities or serious injuries that are alleged or proven to have been
caused by a possible defect in its products. The term ``actual notice''
is extremely broad. To avoid impractical requirements, we proposed to
require reporting of incidents of which a manufacturer receives or
obtains documentation (e.g., in written or electronic formats). 66 FR
66196. We tried to avoid overlapping the definition of claim, which, as
noted above, includes a written request or written demand for relief.
In this context, we proposed to define ``notice'' in the context of an
applicable incident to mean ``a document received by or prepared by a
manufacturer that does not include a demand for relief.'' This would
include, for example, a letter advising a manufacturer of a crash in
which there was a death or injury and an allegation of a defect in the
vehicle where there was no claim for monetary or other relief. In the
preamble to the proposed rule, we noted that newspaper articles or
other media reports would not, in themselves, constitute ``notice,''
unless either they were provided to the manufacturer, such as by an
owner, or actions taken by the manufacturer reflect that it had
received notice of the incidents in question.
The Alliance, Nissan, MEMA, PC, Bendix, and RMA provided comments.
PC agreed with NHTSA's proposed definition.
The manufacturer commenters (Alliance, Nissan, MEMA, Bendix, and
RMA) argued that the proposed definition of ``notice'' was too broad
and over inclusive. More particularly, Nissan and RMA stated that the
language ``prepared by the manufacturer'' was a concern. RMA observed
that the agency did not provide examples of what type of document
``prepared by the manufacturer'' would be included within the
definition of ``notice,'' and recommended that this category be
eliminated in the absence of further guidance and clarification on the
issue. Thus, RMA recommended that the definition of ``notice'' be ``a
document received by a manufacturer that does not include a demand for
relief.''
All the manufacturers complained that the proposed definition would
be construed to include all newspaper articles and media reports
discussing the manufacturer and asserted that this would impose a
tremendous burden on the manufacturers. Nissan was concerned as to what
actions taken by a manufacturer can transform a mere article into a
reportable notice.
Several commenters submitted alternate proposals for the definition
of notice. The Alliance suggested that notice be defined as a written
communication sent to a manufacturer alleging that a defect in a motor
vehicle or item of motor vehicle equipment by that manufacturer caused
an injury or fatality to the person originating the communication or to
the person on whose behalf the notice is sent, but that does not
request relief from the manufacturer. Notice does not include newspaper
articles, publicly available Internet bulletin board postings or other
materials in the public domain.
Nissan recommended that the definition of notice exclude situations
where a manufacturer would have to report on ``actions'' in connection
with media reports and be limited to those that, on their face, are
presented to manufacturers for the purposes of notifying them of a
potential vehicle defect. MEMA suggested that ``notice'' be defined as
``a document received by a manufacturer that (a) does not include a
demand for relief, and (b) does not consist of unconfirmed media or
other unconfirmed reports.''
Finally, Bendix suggested that requests for information that
manufacturers receive from other government agencies, such as the NTSB,
should be excluded from the definition of notice. We have considered
these comments and have modified the proposed definition of ``notice''
to reflect them.
The Alliance recommended without explanation that the definition of
notice include an element of death or injury. This was not included in
MEMA's suggested definition. We are not adopting the Alliance's
proposal. The definition of notice characterizes the essential nature
of the notice. The elements that must to be set forth in the notice to
trigger reporting are separate from the definition and are addressed
under the regulatory requirements.
Next, under the definition in the NPRM, a document ``prepared by a
manufacturer'' that does not include a demand for relief would be a
``notice.'' As noted above, several commenters expressed concern over
the potential breadth of the language ``prepared by the manufacturer.''
In consideration of these comments, we are not adopting this phrase as
part of the final definition. Before adopting such a requirement, we
need to consider further the obligations that such a requirement would
impose and the associated burdens.
Several manufacturers expressed concern that they would have to
review and scan every news medium for reports discussing their
products. This does not follow from a fair reading of the preamble to
the NPRM. As we stated, newspaper articles and other media reports
would only be reported when sent to the manufacturer by an owner or in
situations where the manufacturer itself acknowledges, through its
actions, that it received notice of the actual incident that was the
subject of the media report. Furthermore, under the proposed rule, to
trigger reporting, notices of death and injury had to allege or prove
that the fatality or injury was caused by a possible defect in the
manufacturer's vehicle or equipment and the vehicle had to be
identified with minimal specificity.
Nonetheless, to reduce burdens that might be associated with review
of newspaper articles, the definition of ``notice'' in the final rule
requires reporting only of letters and other documents sent to the
manufacturer (including those sent in electronic form) that on their
face include the elements of the rule regarding notices of deaths and
injuries, without regard to the content of any enclosed or attached
newspaper article. This is expressed in the final rule by the phrase
``other than a media article.'' In general, newspaper articles do not
have the required elements for reporting, including an allegation of a
death or injury alleged or proven to have been caused by a defect, and
minimal specificity regarding the vehicle or equipment. We believe that
this resolution will result in very little unreported information and
that it will reduce burdens associated with the asserted need to review
newspapers or magazines for articles that may involve reportable
incidents. This approach is similar to the first part of MEMA's
proposed definition. However, we believe the definition suggested by
the Alliance is too narrow. The Alliance would limit reporting of
notices to those sent to a manufacturer by a customer or his/her
representative. We would want reporting of notices by others, such as
an injured non-owner passenger or eyewitness, and reporting where the
legal status of a person as a representative is not specified, as it
might not be in a letter written by a non-attorney.
Finally, we agree with Bendix that requests for information from
other government agencies would generally not constitute a ``notice.''
However, we will not exempt all communications from such agencies,
since they could relate to a problem that the agency or one of its
employees had with a vehicle
[[Page 45838]]
or an item of equipment. This is most obvious with respect to
communications from the General Services Administration, which manages
many Federal vehicles, but also can apply to other agencies. To avoid
unnecessary burdens, however, we will exempt communications from NHTSA,
since we would already have the information included in such a
communication.
Therefore, ``notice'' is defined in the final rule as ``a document,
other than a media article, that does not include a demand for relief
and that a manufacturer receives from a person other than NHTSA.''
D. Identification of the Product in Claims and Notices
To be covered by these early warning requirements, a claim or
notice, as well as other matters addressed below, would have to
identify the vehicle or equipment item involved in at least a minimal
way. Otherwise, it would not be possible to identify what vehicle or
equipment was involved, and the information would not help us to
identify potential defects. In the context of identification, we
proposed to use the term ``minimal specificity'' and to define it to
mean ``(a) for a vehicle, the make, model and model year, (b) for a
child seat, the model (either the model name or model number), (c) for
a tire, the model and size, and (d) for other motor vehicle equipment,
if there is a model or family of models identified on the item of
equipment, the model name or model number.''
We proposed to define ``model year'' for this and all other early
warning reporting purposes, for vehicles, to include the year that a
vehicle was manufactured if the manufacturer has not assigned a model
year to the vehicle covered by the report. For equipment, we proposed
that ``model'' mean the name that its manufacturer uses to designate
it. `` Model year'' would mean the calendar year in which the equipment
was manufactured.
We asked for comments on the clarity and inclusiveness of these
proposed definitions.
Johnson asked the agency to confirm that an incident involving an
item of equipment need not be reported by its manufacturer unless the
manufacturer has knowledge of the assembly part number or the component
part number of the equipment item involved. The comment did not
elaborate on why model name or model number would be inadequate and why
an equipment item would have to be identified with this level of
specificity for its manufacturer to comply with the proposed early
warning reporting requirements. In view of the lack of information in
the comment, we have no basis to modify our proposed definition.
Adoption of such a suggestion could result in underreporting of claims
of death.
RMA commented that, for a tire, the minimal information required
should be the ``manufacturer, tire line, tire size, and tire
identification number (TIN).'' According to RMA:
the term ``tire line'' is the preferred term used by the tire
manufacturers to designate their products, and, in most cases, is
synonymous with the term ``tire model.'' The ``tire line'' name
appears on the tire sidewall and is readily identifiable by
consumers. Examples of ``tire line'' names are: Grabber AP, Discover
A/T, Scorpion A/S, Firehawk LH, Energy MXV4 and Wrangler HT.
Accordingly, NHTSA will adopt the RMA recommendation to use the
term ``tire line'' rather than ``model,'' and to define it as ``the
entire name used by a tire manufacturer to designate a tire product,
including all prefixes and suffixes as they appear on the sidewall of
the tire.''
RMA asserted that that a reporting manufacturer should verify that
it was, in fact, the manufacturer of the tire and that tire line, size,
and TIN are needed for a precise identification of the tire. We
disagree with respect to the TIN. To require a TIN would result in
underreporting. If a tire is involved in a death, for early warning
purposes it is sufficient that we know the tire manufacturer, tire