# Early Warning Reporting, Foreign Defect Reporting, and Motor Vehicle and Equipment Recall Regulations

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2012-21574

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 10, 2012
- **Citation:** 77 FR 55606

## Text

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 573, 577, and 579
[Docket No. NHTSA-2012-0068; Notice 1]
RIN 2127-AK72
Early Warning Reporting, Foreign Defect Reporting, and Motor Vehicle and Equipment Recall Regulations

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

ACTION:

Notice of proposed rulemaking (NPRM); Proposal to revise a currently approved information collection.

SUMMARY:

NHTSA is proposing amendments to certain provisions of the early warning reporting (EWR) rule and the regulations governing motor vehicle and equipment safety recalls. The amendments to the EWR rule would require light vehicle manufacturers to specify the vehicle type and the fuel and/or propulsion system type in their reports and add new component categories of stability control systems for light vehicles, buses, emergency vehicles, and medium-heavy vehicle manufacturers, and forward collision avoidance, lane departure prevention, and backover prevention for light vehicle manufacturers. In addition, NHTSA proposes to require motor vehicle manufacturers to report their annual list of substantially similar vehicles via the Internet.

As to safety recalls, we propose, among other things, to require certain manufacturers to submit vehicle identification numbers (VIN) for recalled vehicles and to daily report changes in recall remedy status for those vehicles; require online submission of recalls reports and information; and require adjustments to the required content of the owner notification letters and envelopes required to be issued to owners and purchasers of recalled vehicles and equipment.

DATES:

Written comments regarding these proposed rule changes may be submitted to NHTSA and must be received on or before: November 9, 2012. In compliance with the Paperwork Reduction Act, NHTSA is also seeking comment on proposed revisions to existing information collections. See the Paperwork Reduction Act section under Rulemaking Analyses below. All comments relating to the revised information collection requirements should be submitted to NHTSA and to the Office of Management and Budget (OMB) at the address listed in the
ADDRESSES
section on or before November 9, 2012. Comments to OMB are most useful if submitted within 30 days of publication.

ADDRESSES:

Written comments to NHTSA may be submitted using any one of the following methods:

•
Mail:
Send comments to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Room W12-140, Washington, DC 20590.

•
Fax:
Written comments may be faxed to (202) 493-2251.

•
Internet:
To submit comments electronically, go to the US Government regulations Web site at
http://www.regulations.gov.
Follow the online instructions for submitting comments.

•
Hand Delivery:
If you plan to submit written comments by hand or courier, please do so at 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except federal holidays.

Whichever way you submit your comments, please remember to mention the docket number of this document within your correspondence. The docket may be accessed via telephone at 202-366-9324.

Comments regarding the proposed revisions to existing information collections should be submitted to NHTSA through one of the preceding methods and a copy should also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725-17th Street NW., Washington, DC 20503, Attention: NHTSA Desk Officer.

Instructions:
All comments submitted in relation to these proposed rule changes must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. For detailed instructions on submitting comments and additional information on the rulemaking process, see the Request for Comments heading of the Supplementary Information section of this document. Please note that all comments received will be posted without change to
http://www.regulations.gov,
including any personal information provided.

Privacy Act:
Please see the Privacy Act heading under Rulemaking Analyses and Notices.

FOR FURTHER INFORMATION CONTACT:

For non-legal issues on EWR requirements, contact Tina Morgan, Office of Defects Investigation, NHTSA (telephone: 202-366-0699). For non-legal issues on recall requirements, contact Jennifer Timian, Office of Defects Investigation (telephone: 202-366-0209). For legal issues, contact Andrew J. DiMarsico, Office of Chief Counsel, NHTSA (telephone: 202-366-5263). You may send mail to these officials at National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

II. Summary of the Proposed Rule

III. Background

A. The Early Warning Reporting Rule

B. The Foreign Defect Reporting Rule

C. Defect and Noncompliance Information Reports and Notifications

D. Scope of this Rulemaking

IV. Discussion

A. Statutory Background on Early Warning, Foreign Defect Reporting and Recall Notification Requirements

B. Matters Considered in Adding Data Elements to Early Warning Reports

C. Vehicle Type for Light Vehicle Aggregate Data

D. Reporting by Fuel and/or Propulsion System Type

E. New Component Categories for Light Vehicles, Buses, Emergency Vehicles, and Medium-Heavy Vehicles

1. Stability Control Systems

2. Forward Collision Avoidance and Lane Departure Prevention

3. Backover Prevention

F. Proposed EWR Reporting Templates

G. Electronic Submission of Annual Substantially Similar Vehicle Lists

H. VIN Submission and Recall Remedy Completion Information for Safety Recalls

I. Added Requirements for Information Required to be Submitted in a Part 573 Defect and Noncompliance Information Report

1. An Identification and Description of the Risk Associated with the Safety Defect or Noncompliance with FMVSS

2. As to Motor Vehicle Equipment Recalls, the Brand Name, Model Name, and Model Number of the Equipment Recalled

3. Prohibited Disclaimers in Part 573 Defect and Noncompliance Information Report

J. Online Submission of Recall-Related Reports, Information, and Associated Documents and Recall Reporting Templates

K. Amendments to Defect and Noncompliance Notification Requirements Under Part 577

L. Regulatory Changes to Add or Make More Specific Current Requirements for Manufacturers to Keep NHTSA Informed of Changes and Updates in Defect and Noncompliance Information Reports

M. Requirement to Notify NHTSA in the Event of Filing of Bankruptcy Petition of a Recalling Manufacturer

N. Lead Time

V. Request for Comments

VI. Privacy Act Statement

VII. Rulemaking Analyses and Notices

A. Regulatory Policies and Procedures

B. Regulatory Flexibility Act

C. Executive Order 13132 (Federalism)

D. Unfunded Mandates Reform Act

E. Executive Order 12988 (Civil Justice Reform)

F. Paperwork Reduction Act

1. Part 579 Collection

2. Parts 573 and 577 Collections

G. Executive Order 13045

H. Regulation Identifier Number (RIN)

I. Plain Language

J. Data Quality Act

K. Executive Order 13609

VIII. Proposed Regulatory Text

I. Introduction

In 2000, Congress enacted the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act. Public Law 106-414. Up until the TREAD Act's enactment, NHTSA relied primarily on analyses of complaints from consumers and technical service bulletins (TSBs) from manufacturers to identify potential safety related defects in motor vehicles and motor vehicle equipment. Congress concluded that NHTSA did not have access to data that may provide an earlier warning of safety defects or information related to foreign recalls and safety campaigns. Accordingly, the TREAD Act required that NHTSA prescribe rules requiring motor vehicle and equipment manufacturers to submit certain information to NHTSA that would assist identifying potential safety related defects and to require manufacturers to submit reports on foreign defects and safety campaigns.
See
49 U.S.C. 30166(m) and (l).

On July 10, 2002, NHTSA published its Early Warning Reporting (EWR) regulations requiring that motor vehicle and equipment manufacturers provide certain early warning data. 49 CFR part 579, subpart C;
see
67 FR 45822. The EWR rule requires quarterly reporting of early warning information: Production information; information on incidents involving death or injury; aggregate data on property damage claims, consumer complaints, warranty claims, and field reports; and copies of field reports (other than dealer reports and product evaluation reports) involving specified vehicle components, a fire, or a rollover.

On October 11, 2002, NHTSA published regulations requiring manufacturers to report foreign recalls or other safety campaigns in a foreign country covering a motor vehicle, item of motor vehicle equipment or tire that is identical or substantially similar to a motor vehicle, item of motor vehicle equipment or tire sold or offered for sale in the United States. 49 CFR part 579, subpart B, 67 FR 63310. Under these regulations, manufacturers are required to submit annual lists of substantially similar vehicles to NHTSA. 49 CFR 579.11(e)

As described more fully in the Background section, below, EWR requirements vary somewhat depending on the nature of the reporting entity (motor vehicle manufacturers, child restraint system manufacturers, tire manufacturers, and other equipment manufacturers) and the annual production of the entity. The EWR information NHTSA receives is stored in a database, called Artemis, which also contains additional information (e.g., domestic and foreign recall details and complaints filed directly by consumers) related to defects and investigations.

The Early Warning Division of the Office of Defects Investigation (ODI) reviews and analyzes a huge volume of early warning data and documents submitted by manufacturers. Using its traditional sources of information, such as consumer complaints from vehicle owner questionnaires (VOQs) and manufacturers' own communications, and the additional information provided by EWR submissions, ODI investigates potential safety defects. These investigations often result in recalls.

In the last several years, the agency published two amendments to the EWR regulations. On May 29, 2007, NHTSA made three changes to the EWR rule. 72 FR 29435. First, the definition of “fire” was amended to more accurately capture fire-related events. 72 FR 29443. Second, the agency eliminated the requirement to produce hard copies of a subset of field reports known as “product evaluation reports.”
Id.
Last, the agency limited the time that manufacturers must update a missing vehicle identification number (VIN)/tire identification number (TIN) information or a component in a death or injury incident to a period of no more than one year after NHTSA receives the initial report. 72 FR 29444. On December 5, 2008, NHTSA issued a notice of proposed rulemaking (NPRM) which was followed in September 2009 by a final rule that modified the reporting threshold for light vehicle, bus, medium-heavy vehicle (excluding emergency vehicles), motorcycle and trailer manufacturers' quarterly EWR reports.
See
73 FR 74101 (December 5, 2008); 74 FR 47740, 47757-58 (September 17, 2009). This rule further required manufacturers to submit EWR reports with consistent product names from quarter to quarter and amended part 573
Defect and Noncompliance Responsibility and Reports
to require tire manufacturers to provide tire identification number ranges for recalled tires. 74 FR 47757-58. The final rule also stated that manufacturers must provide the country of origin for a recalled component.
Id.
Last, the rule amended the definition of “other safety campaign” to be consistent with the definition of “customer satisfaction campaign.”
Id.

The September 2009 rule did not address several proposals in the preceding December 2008 NPRM. Those proposals sought to require light vehicle manufacturers to include the vehicle type in the aggregate portion of their quarterly EWR reports, report on use of electronic stability control in light vehicles, and specify fuel and/or propulsion systems when providing model designations.
Id.
The agency decided to issue a separate rulemaking addressing some of the foregoing proposals to obtain more meaningful comments.
See
74 FR 47744. Today's document addresses proposals raised in the December 2008 NPRM not resolved by the September 2009 final rule.

Recently, in July 2012, Congress enacted the Moving Ahead for Progress in the 21st Century (MAP-21) Act, Public Law 112-141, 126 Stat 405, 763 (July 6, 2012). Section 31301 of this Act requires the Secretary of Transportation to mandate that motor vehicle safety recall information be made available to the public on the Internet, be searchable by vehicle make and model and vehicle identification number (VIN), be in a format that preserves consumer privacy, and includes information about each recall that has not been completed for each vehicle. The section further provides that the Secretary may initiate a rulemaking to require manufacturers to provide this information on a publicly accessible Internet Web site.
Id.

II. Summary of the Proposed Rule

The early warning reporting (EWR) rule requires certain manufacturers of motor vehicles and motor vehicle equipment to submit information to NHTSA. 49 CFR part 579, subpart C. The EWR rule divides vehicle manufacturers into different segments based upon weight or vehicle application. These segments are light vehicles, buses, emergency vehicles, medium-heavy vehicles, motorcycles and trailers. The proposed amendments to the EWR rule concern light vehicles, buses, emergency vehicles, and medium-heavy vehicles.

Today's document proposes requiring light vehicle manufacturers to report vehicle type in their death and injury and aggregate reports. Under the current EWR rule, light vehicle manufacturers submit vehicle type as part of

production reports, but do not report vehicle types in either their death and injury reports or their aggregate reports. This proposal seeks to correct this inconsistency.

We propose to require reporting on additional components in the light vehicle, bus, emergency vehicle, and medium-heavy vehicle component categories and to amend the light vehicle, bus, emergency vehicle, and medium-heavy vehicle reporting templates.

This proposal also would add a requirement that light vehicle manufacturers provide the fuel and/or propulsion system type for nine (9) different fuel and/or propulsion system types. In addition, the proposal would add definitions for each fuel and/or propulsion system.

Furthermore, today's document proposes to add four (4) new light vehicle and one (1) new medium-heavy vehicle component reporting categories. The new light vehicle component categories are electronic stability control, forward collision avoidance, lane departure prevention, and backover prevention; the new medium-heavy vehicle component category is stability control/roll stability control. We also propose new definitions for each of these components. We are also proposing to correct a minor inconsistency in light vehicle manufacturer reporting of vehicle types to capture several recently introduced light vehicle technologies.

This proposal also seeks comments on amendments to a manufacturer's reporting requirements related to safety recalls and other safety campaigns in foreign countries under subpart B of part 579. 49 CFR part 579, subpart B. We propose to standardize the manner of submitting annual lists of substantially similar vehicles under 579.11(e) by uploading them, via a secure Internet connection, to NHTSA's Artemis database using a template provided on NHTSA's EWR Web site. Currently, manufacturers may submit their substantially similar lists by mail, facsimile or email.
See
49 CFR 579.6(a).

Today's proposed rule proposes changes and additions to the regulations governing recalls, 49 CFR Part 573,
Defect and Noncompliance Responsibility and Reports,
and 49 CFR Part 577,
Defect and Noncompliance Notification.

We are proposing a number of measures in an effort to improve the information the agency receives from recalling manufacturers concerning the motor vehicles and equipment they are recalling and the plans for remedying those products, in addition to distribution of that information to the affected public.

First, for motor vehicle recalls, and in accordance with the MAP-21 Act, we are proposing to adopt regulations that would implement MAP-21's mandate that the Secretary require motor vehicle safety recall information be made available to the public on the Internet, be searchable by vehicle make and model and vehicle identification number (VIN), be in a format that preserves consumer privacy, and includes information about each recall that has not been completed for each vehicle.
See
MAP-21 Act, Public Law 112-141, § 31301, 126 Stat 405, 763 (July 6, 2012). The Secretary was given the discretion to engage in rulemaking to require each manufacturer to provide the information above on vehicles it manufacturers on a publicly accessible Internet Web site. Id. at section 31301(b). We propose to exercise the authority given the Secretary in sections (a) and (b)

, not only to meet the
Act's mandate, but to increase the numbers of motor vehicles remedied under safety recall campaigns which, in turn, will serve to reduce the risk of incidents, as well as injuries or fatalities, associated with vehicles that contain safety defects or fail to meet minimum FMVSS.

To meet MAP-21, and increase the number of motor vehicles remedied under safety recall campaigns, the agency proposes to offer vehicle owners and prospective purchasers an enhanced vehicle recalls search tool through its Web site,
www.safercar.gov
, that will go beyond the current functionality to search by specific make and model vehicle, and will offer a VIN-based search function that will report back whether a vehicle has been subject to a safety recall, and whether that vehicle has had the manufacturer's free remedy performed.

In order to gather the information necessary for us to provide this enhanced functionality, we are proposing to require larger volume, light vehicle manufacturers to submit the VINs for vehicles affected by a safety recall to NHTSA. We further propose to require these manufacturers to submit to NHTSA recall remedy completion information on those vehicles, again supplied by VIN, that is updated at least once daily so that our search tool has “real time” information that can inform owners and other interested parties if a recall is outstanding on a vehicle. In our effort to improve the information received from recalling manufacturers, and so NHTSA can better understand and process recalls, as well as manage and oversee the recall campaigns and the manufacturers conducting those campaigns, we are proposing to require certain additional items of information from recalling manufacturers. These additional items include an identification and description of the risk associated with the safety defect or noncompliance with a FMVSS, and, as to motor vehicle equipment recalls, the brand name, model name, and model number, of the equipment recalled. We are also proposing that manufacturers be prohibited from including disclaimers in their Part 573 information reports.

Similarly, as part of our effort to ensure we are apprised of information related to recalls that we oversee, we are also proposing changes to add or make more specific current requirements for manufacturers to keep NHTSA informed of changes and updates in information provided in the defect and noncompliance information reports they supply.

We are proposing to require manufacturers to submit through a secure, agency-owned and managed web-based application, all recall-related reports, information, and associated documents. This is to improve our efficiency and accuracy in collecting and processing important recalls information and then distributing it to the public. It also will reduce a current and significant allocation of agency resources spent translating and processing the same information that is currently submitted in a free text fashion, whether that text is delivered via a hard copy, mailed submission, or delivered electronically through email.

In order to ensure that owners are promptly notified of safety defects and failures to meet minimum safety standards, we are proposing to specify that manufacturers notify owners and purchasers no later than 60 days of when a safety defect or noncompliance decision is made. In the event the free remedy is not available at the time of notification, we are proposing that manufacturers be required to issue a second notification to owners and purchasers once that remedy is available.

In an effort to encourage owners to have recall repairs made to their vehicles and vehicle equipment, we are proposing additional requirements governing the content and formatting of owner notification letters and the envelopes in which they are mailed in an effort to improve the number of vehicles that receive a remedy under a recall. We are proposing that all letters include “URGENT SAFETY RECALL” in all capitals letters and in an enlarged font at the top of those letters, and that for vehicle recalls, the manufacturer place the VIN of the owner's vehicle

affected by the safety defect or noncompliance, within the letter. To further emphasize the importance of the communication, and to distinguish it from other commercial communications, we are proposing that the envelopes in which the letters are mailed be stamped with the logos of the National Highway Traffic Safety Administration and the U.S. Department of Transportation, along with a statement that the letter is an important safety recall notice issued in accordance with Federal law.

Lastly, we are proposing to add a requirement for manufacturers to notify the agency in the event they file for bankruptcy. This requirement will help us preserve our ability to take necessary and appropriate measures to ensure recalling manufacturers, or others such as corporate successors, continue to honor obligations to provide free remedies to owners of unsafe vehicle and equipment products.

III. Background

A. The Early Warning Reporting Rule

On July 10, 2002, NHTSA published a rule implementing the EWR provisions of the TREAD Act, 49 U.S.C. 30166(m). 67 FR 45822. This rule requires certain motor vehicle manufacturers and motor vehicle equipment manufacturers to report information and submit documents to NHTSA that could be used to identify potential safety-related defects.

The EWR regulation divides manufacturers of motor vehicles and motor vehicle equipment into two groups with different reporting responsibilities for reporting information. The first group consists of: (a) Larger vehicle manufacturers that meet certain production thresholds that produce light vehicles, buses, emergency vehicles, medium-heavy vehicles, trailers and/or motorcycles; (b) tire manufacturers that produce over a certain number per tire line; and (c) all manufacturers of child restraints. Light vehicle, motorcycle, trailer and medium-heavy vehicle manufacturers except buses and emergency vehicles that produced, imported, offered for sale, or sold 5,000 or more vehicles annually in the United States are required to report comprehensive reports every calendar quarter. Emergency vehicle manufacturers must report if they produced, imported, offered for sale, or sold 500 or more vehicles annually and bus manufacturers must report if they produced, imported or offered for sale, or sold 100 or more buses annually in the United States. Passenger car tire, light truck tire and motorcycle tire manufacturers that produced, imported, offered for sale, or sold 15,000 or more per tire line are also required to provide comprehensive quarterly reports. The first group must provide comprehensive reports every calendar quarter. 49 CFR 579.21-26. The second group consists of all other manufacturers of motor vehicles and motor vehicle equipment (i.e., vehicle manufacturers that produce, import, or sell in the United States fewer than 5,000 light vehicles, medium-heavy vehicles (excluding emergency vehicles and buses), motorcycles, or trailers annually; fewer than 500 emergency vehicles annually; fewer than 100 buses annually; manufacturers of original motor vehicle equipment; and manufacturers of replacement motor vehicle equipment other than child restraint systems and tires). The second group has limited reporting responsibility.
1

49 CFR 579.27.

1
In contrast to the comprehensive quarterly reports provided by manufacturers in the first group, the second group of manufacturers does not have to provide quarterly reports. These manufacturers only submit information about a death incident when they receive a claim or notice of a death.

Light vehicle, bus, emergency vehicle and medium-heavy vehicle manufacturers must provide information relating to:

• Production (the cumulative total of vehicles or items of equipment manufactured in the year).

• Incidents involving death or injury based on claims and notices received by the manufacturer.

• Claims relating to property damage received by the manufacturer.

• Consumer complaints (a communication by a consumer to the manufacturer that expresses dissatisfaction with the manufacturer's product or performance of its product or an alleged defect).

• Warranty claims paid by the manufacturer pursuant to a warranty program (in the tire industry these are warranty adjustment claims).

• Field reports (a report prepared by an employee or representative of the manufacturer concerning the failure, malfunction, lack of durability or other performance problem of a motor vehicle or item of motor vehicle equipment).

For property damage claims, warranty claims, consumer complaints and field reports, light vehicle, bus, emergency vehicle and medium-heavy vehicle manufacturers submit information in the form of numerical tallies, by specified system and component. These data are referred to as aggregate data. Reports on deaths or injuries contain specified data elements. In addition, light vehicle, bus, emergency vehicle and medium-heavy vehicle manufacturers are required to submit copies of field reports, except for dealer and product evaluation reports.

On a quarterly basis, vehicle and equipment manufacturers meeting the production thresholds discussed above must provide comprehensive reports for each make and model for the calendar year of the report and nine previous model years for vehicles and four years for equipment. The vehicle systems or components on which manufacturers provide information vary depending upon the type of vehicle or equipment manufactured. Light vehicle manufacturers must provide reports on twenty (20) vehicle components or systems: Steering, suspension, service brake, parking brake, engine and engine cooling system, fuel system, power train, electrical system, exterior lighting, visibility, air bags, seat belts, structure, latch, vehicle speed control, tires, wheels, seats, fire and rollover. Bus, emergency vehicle and medium-heavy vehicle manufacturers must provide reports on an additional four (4) vehicle components or systems: service brake air, fuel system diesel, fuel system other, and trailer hitch.
2

2
Manufacturers of motorcycles, trailers, child restraints and tires report on varying systems and components.
See
49 CFR 579.23-26.

B. The Foreign Defect Reporting Rule

On October 11, 2002, NHTSA published regulations implementing foreign motor vehicle and product defect reporting provisions of the TREAD Act, 49 U.S.C. 30166(1). 67 FR 63295, 63310; 49 CFR 579, subpart B. The Foreign Defect Reporting rule requires certain motor vehicle manufacturers and motor vehicle equipment manufacturers to report information and submit documents to NHTSA when a manufacturer or a foreign government determines that a safety recall or other safety campaign should be conducted in a foreign country for products that are identical or substantially similar to vehicles or items of equipment sold or offered for sale in the United States. 49 U.S.C. 30166(1)(1) & (2). To assist the agency's program implementation, manufacturers must submit an annual list of substantially similar vehicles to NHTSA. 49 CFR 579.11(e). This list is due by November 1 of each year. Manufacturers may submit their substantially similar vehicle list by mail, facsimile or by email. 49 CFR 579.6(a). NHTSA offers a Microsoft Excel template on its Web site

http://

www.safercar.gov/

that manufacturers can download and use to upload their substantially similar lists directly to NHTSA's Artemis database. The vast majority of manufacturers submit their substantially similar list by uploading the template directly to the agency.

C. Defect and Noncompliance Information Reports and Notifications

Pursuant to 49 U.S.C. 30118 and 30119, manufacturers are required to provide notice to the Secretary if the manufacturer determines that a motor vehicle or item of motor vehicle equipment contains a defect related to motor vehicle safety or does not comply with an applicable motor vehicle safety standard. The regulation implementing the manufacturer's requirement to provide notice to NHTSA is located at 49 CFR part 573
Defect and Noncompliance Responsibility and Reports,
which, among other things, requires manufacturers to provide reports (commonly referred to as Defect or Noncompliance reports, or Part 573 Reports, as the case may be) to NHTSA on defects in motor vehicles and motor vehicle equipment and noncompliances with motor vehicle safety standards found in 49 CFR part 571. Section 573.6 specifies the information that manufacturers are required to submit to the agency and Section 573.9 specifies the address for submitting reports. One element is the identification of the vehicles containing the defect or noncompliance. Section 573.6(c)(2)(i) requires manufacturers to identify passenger cars by the make, line, model year, the dates of manufacture and other information as necessary to describe the vehicles. For all other vehicles, Section 573.6(c)(2)(ii) requires manufacturers to identify the vehicles by body style or type, dates of manufacture and any other information as necessary to describe the vehicle, such as the GVWR. Section 573.6(c)(3) requires manufacturers to submit the total number of vehicles that potentially contain the defect or noncompliance. Section 573.8 requires manufacturers to maintain lists of VINs of the vehicles involved in a recall as well as the remedy status for each vehicle to be included in a manufacturer's quarterly reporting as specified in 573.7.

The conduct of a recall notification campaign, including how and when owners, dealers, and distributors are notified, is addressed by regulation in 49 CFR Part 577,
Defect and Noncompliance Notification.
Section 577.5 specifies required content and structure of the owner notifications. Section 577.13 specifies required content for dealer and distributor notifications. Section 577.7 dictates the time and manner of these notifications.

Recently, in July 2012, Congress enacted the MAP-21 Act, Public Law 112-141, 126 Stat. 405 (July 6, 2012). It requires, among other things, that the Secretary of Transportation require that motor vehicle safety recall information be made available to the public on the Internet, be searchable by vehicle make and model and vehicle identification number (VIN), be in a format that preserves consumer privacy, and includes information about each recall that has not been completed for each vehicle. Id.
at section 31301(a).
The Act provides that the Secretary may initiate a rulemaking to require manufacturers to provide this information on a publicly accessible Internet Web site.
Id.
at 31301(b).

D. Scope of this Rulemaking

Today's proposed rule is limited in scope to the proposed amendments to the EWR requirements, the foreign defect reporting rule, and to the requirements associated with safety recall reporting, administration, and execution as delineated in Parts 573 and 577 of Title 49 of the Code of Federal Regulations. Apart from the proposed changes noted above in the summary section, NHTSA intends to leave the remaining current EWR, foreign defect reporting regulations, and safety recalls implementing regulations Parts 573 and 577 unchanged.

IV. Discussion

A. Statutory Background on Early Warning Reporting, Foreign Defect Reporting and Recall Notification Requirements

Under the early warning reporting requirements of the TREAD Act, NHTSA is required to issue a rule establishing reporting requirements for manufacturers of motor vehicles and motor vehicle equipment to enhance the agency's ability to carry out the provisions of Chapter 301 of Title 49, United States Code, which is commonly referred to by its initial name the National Traffic and Motor Vehicle Safety Act or as the Safety Act.
See
49 U.S.C. 30166(m)(1), (2). Under one subsection of the early warning provisions, NHTSA is to require reports of information in the manufacturers' possession to the extent that such information may assist in the identification of safety-related defects and which concern,
inter alia,
data on claims for deaths and aggregate statistical data on property damage. 49 U.S.C. 30166(m)(3)(A)(i);
see also
49 U.S.C. 30166(m)(3)(C). Another subsection, specifically 30166(m)(3)(B), authorizes the agency to require manufacturers to report information that may assist in the identification of safety defects. Specifically, section 30166(m)(3)(B) states: “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.” This subsection conveys substantial authority and discretion to the agency. Most EWR data, with the exception of information on deaths and property damage claims, is reported under regulations authorized by this provision.

The agency's discretion is not unfettered. Per 49 U.S.C. 30166(m)(4)(D), NHTSA may not impose undue burdens upon manufacturers, taking into account the cost incurred by manufacturers to report EWR data and the agency's ability to use the EWR data meaningfully to assist in the identification of safety defects.

The TREAD Act also amended 49 U.S.C. 30166 to add a new subsection (l) to address reporting of foreign defects and other safety campaigns by vehicle and equipment manufacturers. This section requires manufacturers of motor vehicles or items of motor vehicle equipment to notify NHTSA if the manufacturer or a foreign government determines that the manufacturer should conduct a recall or other safety campaign on a motor vehicle or item of motor vehicle equipment that is identical or substantially similar to a motor vehicle or item of motor vehicle equipment offered for sale in the United States. 49 U.S.C. 30166(l). Subsection (l) does not define “identical” or the term “substantially similar.” Under the TREAD Act's foreign defect reporting provisions, NHTSA is to specify the contents of the notification.
Id.

The Safety Act also requires manufacturers of motor vehicles or items of motor vehicle equipment to notify NHTSA and owners and purchasers of the vehicle or equipment if the manufacturer determines that a motor vehicle or item of motor vehicle equipment contains a defect related to motor vehicle safety or does not comply with an applicable motor vehicle safety standard. 49 U.S.C. 30118(c). Manufacturers must provide notification pursuant to the procedures set forth in section 30119 of the Safety Act. Section 30119 sets forth the contents of the

notification, which includes a clear description of the defect or noncompliance, the timing of the notification, means of providing notification and when a second notification is required. 49 U.S.C. 30119. Subsection (a) of section 30119 confers considerable authority and discretion on NHTSA, by rulemaking, to require additional information in a manufacturer's notification.
See
49 U.S.C. 30119(a)(7).

In July 2012, Congress enacted the MAP-21 Act. See Public Law 112-141, 126 Stat. 405 (July 6, 2012). Sections 31301 of the MAP-21 Act mandates that the Secretary require that motor vehicle safety recall information be made available to the public on the Internet, and it provides authority to the Secretary, in his discretion, to conduct a rulemaking to require each manufacturer to provide its safety recall information on a publicly accessible Internet Web site. Under section 31301(a), Congress has directed the Secretary to require motor vehicle safety information be available on the Internet, searchable by vehicle make, model and VIN, preserves consumer privacy and includes information regarding completion of the particular recall. Section 31301(b) authorizes the Secretary, in his discretion, to conduct a rulemaking requiring each manufacturer to provide the safety recall information in paragraph (a) on a publicly accessible Internet Web site. Specifically, section 31301(a) states:

(a) VEHICLE RECALL INFORMATION.—Not later than 1 year after the date of enactment of this Act, the Secretary shall require that motor vehicle safety recall information—

(1) Be available to the public on the Internet;

(2) be searchable by vehicle make and model and vehicle identification number;

(3) be in a format that preserves consumer privacy; and

(4) includes information about each recall that has not been completed for each vehicle.

While Congress has provided certain parameters to its mandate to make safety recall information available on the Internet, it has not directly spoken on the mechanism to implement section 31301(a), leaving the agency to use its discretion to fill any ambiguity. Paragraph (a) is silent with respect to who is required to make safety recall information available, which manufacturers are subject to the requirement, the types of safety information to be made available and how and when the information is placed on the Internet.

While it is clear that motor vehicle manufacturers have data regarding safety recalls, NHTSA also receives safety recall information from manufacturers pursuant to other provisions of the Safety Act and NHTSA's regulations.
See
49 U.S.C. §§ 30118 and 30119; 49 CFR part 573. With both manufacturers and NHTSA collecting safety recall information, section 30301(a) lacks precise language as to who is required to make that information available on the Internet. Paragraph (a) is clear that the “Secretary shall require” the information be placed on the Internet, but it is unclear who the Secretary is to require to place safety recall information on the Internet. Under this language, either manufacturers or NHTSA may be required to place safety recall information on the Internet.

In addition, section 30301(a) is silent on which manufacturers are subject to making information available on the Internet, only requiring motor vehicle safety recall information be made available. This section does not specify which vehicle manufacturers are required to make their information available. Consistent with traditional tools of statutory construction, Congress is presumed to know each agency's statutory and regulatory scheme. Under its regulatory scheme, NHTSA often breaks down motor vehicle manufacturers into different vehicle classes based upon each vehicle's application. For example, under the Early Warning Reporting (EWR) Regulation, 49 CFR part 579, subpart C, NHTSA divides motor vehicle manufacturers into several reporting categories such as light vehicles, medium-heavy vehicles, motorcycles and trailers and has limited the reporting obligations of classes of vehicle manufacturers that annually produce under a certain amount.
See
49 CFP 579.21-24. Here, Congress has not directly spoken on whether safety recall information must be made available from all vehicle manufacturers, certain classes of vehicle manufacturers or, like the EWR rule, certain manufacturers based on annual production. Congress, accordingly, has left it to NHTSA to determine the scope of manufacturers that are required to place safety recall information on the Internet.

Moreover, section 30301(a) does not expressly state the type of safety recall information that must be placed on the Internet, merely requiring “motor vehicle safety recall information” and requiring that this information be searchable by vehicle, make and model and VIN. Other than vehicle make, model and VIN, section 30301(a) requires only that “motor vehicle safety information” include information about each recall that has not been completed for each vehicle. However, under NHTSA regulations, recall information is broader than the information specifically listed in section 30301(a). Under 49 CFR part 573, in general, manufacturers are required to submit several types of information, such as the total number of vehicles, an estimate of the percentage of vehicles with the defect, a description of the defect, a chronology of all the principal events that lead to the determination of a recall, a description of the manufacturer's remedy program, etc.
See
49 CFR 573.6. Given the diversity of information that could constitute safety recall information, Congress has vested considerable discretion with NHTSA to determine the appropriate types of information to be placed on the Internet.

Section 30301(a) also fails to specify how and when the safety recall information shall be placed on the Internet. Other than providing for the information to be searchable by vehicle make, model and VIN, and that the format preserves consumer privacy, section 31301(a) is silent on the format and degree of availability of the safety recall information. Current information available on the Safercar.com Web site is available in different formats and degrees of availability. For instance, the agency makes consumer complaints available on the Internet in two different formats. One format is searchable by vehicle, make, model and component. The other format provides the public the ability to download NHTSA's consumer complaint database, which permits the individual to perform customized searches of the consumer complaint database. Without precise language specifying the format and degree of availability, NHTSA is left to determine the appropriate mechanism for placement on the Internet.

While providing authority to conduct a rulemaking, section 31301(b) provides little help in resolving the issues in paragraph (a). Paragraph (b) provides the Secretary with the authority to conduct a rulemaking to provide the information in subsection (a) and provides limited instructions as to the scope of any such rulemaking and sharing such information with automobile dealers and consumers. Section 31301(b) states:

(b) RULEMAKING.—The Secretary may initiate a rulemaking proceeding to require each manufacturer to provide the information described in subsection (a), with respect to that manufacturer's motor vehicles, on a publicly accessible

Internet Web site. Any rules promulgated under this subsection—

(1) shall limit the information that must be made available under this section to include only those recalls issued not more than 15 years prior to the date of enactment of [MAP-21];

(2) may require information under paragraph (1) to be provided to a dealer or an owner of a vehicle at no charge; and

(3) shall permit a manufacturer a reasonable period of time after receiving information from a dealer with respect to a vehicle to update the information about the vehicle on the publicly accessible Internet Web site.

Similar to paragraph (a) of 31301, paragraph (b) does not address which manufacturers are subject to the requirement to provide safety recall information on the publicly accessible Internet, whether the information is placed on the manufacturer's public Web site or NHTSA's Web site, the types of safety information to be made available and how and when the information is placed on the Internet. Instead, it vests considerable discretion in the agency to conduct a rulemaking to best meet the statutory goals of section 31301. The MAP-21 Act further specifies that a manufacturer's filing of a bankruptcy petition under Chapter 11 of Title 11 of the United States Code, does not negate its duty to comply with, among other things, the defect and noncompliance notification and reporting obligations, nor the requirement to provide a free remedy, under the Safety Act.
MAP-21 Act at section at 31312.

B. Matters Considered in Adding Data Elements to Early Warning Reports

Under EWR, we endeavor to collect a body of information that may assist in the identification of potential safety-related defects in motor vehicles and motor vehicle equipment. When we believe that the EWR information may be refined or enhanced to further advance our goal of identifying safety defects, we consider factors that are relevant to the particular area of EWR under consideration. In view of our broad statutory authority to require reporting of information that may assist in the identification of potential safety-related defects, we do not believe that it is necessary or appropriate to identify a prescriptive list of factors for delineating particular data elements. Nonetheless, based on our experience, the following considerations, among other things, have been identified as relevant to evaluating whether or not adding data elements to light vehicle, bus, emergency vehicle and medium-heavy vehicle reporting would assist in identifying safety-related defects:

• The importance of the data to motor vehicle safety.

• The maturity of a particular technology and its market penetration.

• Whether the current component categories are adequate to capture information related to proposed data elements.

• Whether ODI has investigated or been notified of vehicle recalls related to the proposed data elements.

• Whether VOQ complaints related to the data elements have been useful in opening investigations into potential safety-related defects and whether those investigations have resulted or may result in recalls.

• Whether manufacturers collect information on the proposed data elements.

• The burden on manufacturers.

We emphasize that the general approach of the EWR program is to collect data on numerous systems and components in a very wide range and volume of vehicles for the agency to then systematically review information, with the end result being the identification of a relatively small number of potential safety problems, compared to the amount of data collected and reviewed. These data are considered along with other information collected by and available to the agency in deciding whether to open investigations.

C. Vehicle Type for Light Vehicle Aggregate Data

The EWR regulation requires light vehicle manufacturers producing 5000 or more vehicles annually to submit production information including the make, the model, the model year, the type, the platform and the production. 49 CFR 579.21(a). Manufacturers must provide the production as a cumulative total for the model year, unless production of the product has ceased.
Id.
While light vehicle manufacturers are required to provide the type of vehicle with their production, they are not required to provide the type of vehicle when they submit death and injury data pursuant to 49 CFR 579.21(b) or with aggregate data under 49 CFR 579.21(c).
3

Under today's notice, we propose to amend 579.21(b) and (c) to require light vehicle manufacturers to provide the type of vehicle when they submit their death and injury data and aggregate data under those sections. We also propose to amend the light vehicle reporting templates for the EWR death and injury and aggregate reports to reflect adding vehicle type. The proposed light vehicle templates are located in Appendix A below.

3
For light vehicles, type means a vehicle certified by its manufacturer pursuant to 49 CFR 567.4(g)(7) as a passenger car, multipurpose passenger vehicle, or truck or a vehicle identified by its manufacturer as an incomplete vehicle pursuant to 48 CFR 568.4.
See
49 CFR 579.4.

Today's proposal will assist ODI to identify potential safety-related defects by making light vehicle EWR data received internally consistent. Because light vehicle manufacturers providing quarterly EWR reports are not obligated to provide the vehicle type in their death and injury and aggregate EWR reports, NHTSA is unable to distinguish whether the light vehicle death and injury and aggregate data are associated with certain vehicle types such as passenger cars, multi-purpose vehicles, light trucks or incomplete vehicles. Without being able to isolate this information by vehicle type, ODI cannot match aggregate data with production data.

If this proposal is adopted, NHTSA could perform a more focused analysis of the EWR information. For instance, warranty claims by vehicle type from the aggregate data can be matched with corresponding vehicle type production data, allowing us to determine the occurrence of warranty claims per vehicle type. This proportion can be used in a subsequent, more focused and thorough analysis of EWR data. A relatively high rate of warranty claims per production unit may warrant further examination of EWR and other ODI sources of information. This proposal would permit a more efficient and targeted use of the EWR data in terms of detecting and identifying potential safety concerns.

Light vehicle manufacturers should be able to readily identify the vehicle type from the VIN provided in the information they receive. About 95 percent of the EWR reports on incidents involving a death or injury include a VIN when initially submitted by manufacturers. 71 FR 52040, 52046 (September 1, 2006). Warranty claims and field reports normally contain a VIN because the manufacturer's authorized dealer or representative has access to the vehicle and, in the case of warranty claims, a vehicle manufacturer will not pay a warranty claim unless the claim includes the VIN. For consumer complaints and property damage claims, the VIN or other information is generally available to identify the type of vehicle. If the VIN is not available, we propose that the manufacturer submit “UN” for “unknown” in the required field.

NHTSA believes that this change would place a minimal burden on light

vehicle manufacturers. Each manufacturer would need to add a field to its EWR database containing the light vehicle type and perform reprogramming of internal software. In its response to the December 2008 NPRM, the Alliance of Automobile Manufacturers (Alliance), an industry trade group,
4

did not object to this proposal, stating that the costs were relatively modest.
See
Comment of Alliance of Automobile Manufacturers to December 5, 2008 NPRM (docket #NHTSA 2008-0169-0013.1, located at
http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064808443c2)
.

4
The Alliance members are BMW Group, Chrysler LLC, Ford Motor Company, General Motors, Jaguar Land Rover, Mazda, Mercedes-Benz, Mitsubishi Motors, Porsche, Toyota, and Volkswagen.

We seek comment on today's proposed amendments to 49 CFR 579.21(b) and (c) to add a vehicle type requirement to EWR death and injury and aggregate data reports. In any comments on burden, we seek details on costs to revise EWR templates and software to meet this proposal.

D. Reporting by Fuel and/or Propulsion System Type

The EWR regulation requires light vehicle manufacturers to report the required information by make, model and model year. 49 CFR 579.21(a), (b)(2), (c). The rule also requires light vehicle manufacturers to subdivide their EWR death and injury and aggregate reports by components. 49 CFR 579.21(b)(2), (c). The reporting by make, model and model year and component categories have remained unchanged since the EWR regulation was published in July 2002. Since that time, manufacturers have introduced new technologies to meet the demand for more fuel efficient vehicles. Currently, light vehicle manufacturers do not identify the specific fuel or propulsion system used in their vehicles. As use of these new technologies expands, we are concerned that the current EWR reporting scheme is not sufficiently sensitive for readily identifying vehicles with different fuel and/or propulsion system types. For example, some models, such as the Toyota Camry, are offered with both conventional and hybrid propulsion systems. To address these concerns, we propose to amend 579.21(a), (b), and (c) to require light vehicle manufacturers to report fuel and/or propulsion system types in their EWR reports. We also propose to amend the light vehicle reporting templates to reflect these proposals. We propose adding eight (8) fuel and/or propulsion systems and an “other” category in which manufacturers may bin their vehicles. We are also proposing definitions for each fuel and/or propulsion system and codes that a manufacturer would use when reporting.

The current Corporate Average Fuel Economy (CAFE) standard and new proposed CAFE standards will spur manufacturers to increasingly produce fuel efficient vehicles employing various technologies. Following the direction set by President Obama on May 21, 2010, NHTSA and the Environmental Protection Agency (EPA) have issued a Notice of Proposed Rulemaking (NPRM) for Fuel Economy and Greenhouse Gas emissions regulations for model year (MY) 2017-2025 light-duty vehicles.
5

NHTSA believes that to meet the proposed CAFE rule, manufacturers will increase their production of light vehicles with alternate fuel/propulsion systems which will raise new safety issues in these vehicle that are currently unaccounted for in the EWR regulatory scheme.

5
Notice of Proposed Rulemaking,
2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards, 76 FR 74854-75420,
December 1, 2011 (located at
http://www.nhtsa.gov/staticfiles/rulemaking/pdf/cafe/2017-25_CAFE_NPRM.pdf)
.

Therefore, as the automotive industry begins to introduce and produce more vehicles with new propulsion systems, NHTSA believes now is an opportune time to start collecting EWR information to assist in identifying potential defects in these new systems. As currently configured, the EWR reporting structure may mask potential problems with these systems. NHTSA is currently unable to discern from EWR data whether a particular vehicle problem is unique to a particular fuel or propulsion system. Under today's proposal, problems with a particular make and model that may be unique to one fuel/propulsion system could be readily distinguished from problems that may apply to that make and model regardless of the fuel/propulsion system. Also, this proposal would permit NHTSA to investigate safety concerns in many makes and models with similar fuel/propulsion systems (e.g., a battery problem in a plug-in electric vehicle or a hydrogen fuel cell problem that may extend to similarly equipped vehicles).

We believe that adding the appropriate fuel and/or propulsion system type to EWR will enhance NHTSA's ability to identify and address potential safety defects related to specific fuel and/or propulsion systems. Recent investigations indicate that dividing light vehicles by make, model, and fuel/propulsion system will assist in our identification of safety defect trends. NHTSA has opened several investigations on light vehicle models manufactured with more than one fuel or propulsion system as an option. Each investigation involved an issue with a specific fuel or propulsion system that under current EWR reporting is masked by light vehicle manufacturers reporting the vehicles under one category for fuel/propulsion:

• PE02-071 and EA03-001 involved alleged vehicle explosions during fires on 1996-2003 Ford Crown Victoria vehicles powered by compressed natural gas (CNG). The 1996-2003 Crown Victoria was manufactured with two (2) different fuel/propulsion systems: Spark ignition fuel (SIF) and CNG. This resulted in a recall: NHTSA recall number 03V472.

• PE07-028 involved alleged CNG tanks exploding during fires on 2003 Honda Civic vehicles powered by CNG. Honda recalled the vehicles.
See
NHTSA recall number 07V512. The 2003 Honda Civic is available with three (3) different fuel/propulsion systems: SIF, hybrid (HEV) or CNG.

Accordingly, we propose amending 49 CFR 579.21(a), (b), and (c) to require light vehicle manufacturers to provide the type of fuel and/or propulsion system when they submit their EWR data. We also propose amending the light vehicle reporting templates for the EWR production information, death and injury, and aggregate reports to reflect adding fuel and/or propulsion type.

We propose adding a new definition of “fuel and/or propulsion system type” in 49 CFR 579.4. The new definition would provide that “
Fuel and/or propulsion system type
means the variety of fuel and/or propulsion systems used in a vehicle, as follows: Compressed natural gas (CNG); compression ignition fuel (CIF); electric battery power (EBP); fuel-cell power (FCP); hybrid electric vehicle (HEV); hydrogen based power (HBP); plug-in hybrid (PHV); and spark ignition fuel (SIF).” Manufacturers would identify the fuel and/or propulsion system on the EWR template in the appropriate field. In addition to amending 579.4 to add “fuel and/or propulsion system type”, we propose to amend that section to add a definition for each fuel/propulsion system type, as follows:

•
Compressed natural gas (CNG)
means, in the context of reporting fuel and/or propulsion system type, a system that uses compressed natural gas to propel a motor vehicle.

•
Compression ignition Fuel (CIF)
means, in the context of reporting fuel and/or propulsion system type, a system

that uses diesel or any diesel-based fuels to propel a motor vehicle. This includes biodiesel.

•
Electric battery power (EBP)
means, in the context of reporting fuel and/or propulsion system type, a system that uses only batteries to power an electric motor to propel a motor vehicle.

•
Fuel-cell power (FCP)
means, in the context of reporting fuel and/or propulsion system type, a system that uses fuel cells to generate electricity to power an electric motor to propel the vehicle.

•
Hybrid electric vehicle (HEV)
means, in the context of reporting fuel and/or propulsion system type, a system that uses a combination of an electric motor and internal combustion engine to propel a motor vehicle.

•
Hydrogen based power (HBP)
means, in the context of reporting fuel and/or propulsion system type, a system that uses hydrogen to propel a motor vehicle through means other than a fuel cell.

•
Plug-in hybrid (PHV)
means, in the context of reporting fuel and/or propulsion system type, a system that combines an electric motor and an internal combustion engine to propel a motor vehicle and is capable of recharging its batteries by plugging in to an external electric current.

•
Spark ignition fuel (SIF)
means, in the context of reporting fuel and/or propulsion system type, a system that uses gasoline, ethanol, or methanol based fuels to propel a motor vehicle.

We anticipate that the majority of vehicles produced by manufacturers will be captured by our proposed definitions. However, the proposal includes the term “other” to identify vehicle models employing a fuel/propulsion system that is not enumerated in our other proposed fuel and/or propulsion types. For example, the Dual fuel F-150 would be classified as “Other,” since it is propelled by either gasoline or CNG. We propose to use the following codes for fuel/propulsion type: CNG, CIF, EBP, FCP, HEV, HBP, PHV, SIF and OTH (Other).

Our fuel/propulsion system types include most of the alternative fuels found in the Energy Policy and Conservation Act (EPCA), as amended, 49 U.S.C. 32901, but not all. Due to differences in the Corporate Average Fuel Economy (CAFE) and EWR programs, our proposed categories of fuel/propulsion systems differ slightly from the alternative fuels listed in section 32901. While EPCA encourages manufacturers to produce vehicles using alternative fuels, the EWR program has a different focus. In the context of alternative fuel vehicles, that focus is on potential problems that may occur within a fuel or propulsion system, which requires the agency to differentiate between propulsion technologies that are, or will be, available to consumers. For EWR purposes, there is no technical hardware difference between a vehicle with a spark ignition fuel engine capable of using a variety of fuels, such as ethanol or gasoline, or a mixture of fuels, such as E85 (ethanol/gasoline mixture) and a vehicle with a spark ignition fuel engine using gasoline only. While such a fuel distinction is appropriate for the CAFE program, EWR will not benefit from that level of detail because the specific fuel type being used will be unknown.

We solicit comment on our proposed definitions and seek input on clarifying each distinct system type. We also seek comment on whether additional fuel and/or propulsion system types should be added and how they might be defined.

The Alliance's comments to the December 2008 NPRM opposed adding fuel or propulsion systems because it would increase manufacturers' reporting costs. First, the Alliance contended that adding fuel/propulsion system reporting by distinct models would impose a one-time cost of approximately $170,000 (per manufacturer) to revise their EWR systems to collect and properly bin the data. Substantial ongoing costs would be incurred as well. According to these comments, manufacturers separately maintain some data, such as production and sales information, based upon the type of fuel or propulsion system in various models. However, the Alliance states that manufacturers do not separate vehicles by fuel or propulsion system when reporting EWR data by component category. Doing so, the Alliance states, would require manufacturers to revise their systems, which appears to be the bulk of the manufacturers' costs. The Alliance also noted that adding fuel/propulsion types would require manufacturers to report on hundreds of different models. Today's proposal is different than the one proposed in the December 2008 NPRM. Our current proposal would not add the fuel and/or propulsion system type to the model name as was proposed in December 2008. It proposes to add a new separate reporting element to the EWR.

If today's proposal is adopted, manufacturers will incur a one-time cost to revise EWR templates and software to incorporate the fuel and/or propulsion system types in their EWR reporting. However, in the agency's view, adding the fuel and/or propulsion system type to EWR will not be unduly burdensome for manufacturers because manufacturers already collect this information. Manufacturers collect and analyze data on alternative fueled models, like any other model, to monitor quality control, safety problems and to make in-process improvements. In their data collections, manufacturers distinguish between fuel/propulsion systems within a model to conduct root cause analyses. Once EWR systems are revised, additional ongoing burdens should be negligible as manufacturers already have established EWR operations. In addition, the agency has proposed a relatively small number of fuel and/or propulsion system types that should not require manufacturers to report on hundreds of different models, as stated by the Alliance.

We seek comments on our proposal to amend 49 CFR 579.21 to add fuel and/or propulsion system type to light vehicle reporting, the proposed types of fuel or propulsion systems and each proposed fuel or propulsion type definition. We also seek comments on the proposed light vehicle templates located in section F below incorporating our proposed amendments. Finally, on comments related to burden, we seek details on costs to revise EWR templates and software to meet the fuel and/or propulsion system type proposal.

E. New Component Categories for Light Vehicles, Buses, Emergency Vehicles, and Medium-Heavy Vehicles

The EWR regulation requires light and medium-heavy vehicle manufacturers to report the required information by specific component categories. 49 CFR 579.21(b)(2), (c), (d) and 579.22(b), (c), (d). The component categories for each vehicle type have remained unchanged since the EWR regulation was published in July 2002. Since that time, new technologies, such as Electronic Stability Control (ESC), Roll Stability Control (RSC), Forward Collision Avoidance (FCA), Lane Departure Prevention (LDP), and Backover Prevention, have been introduced into the marketplace. As these new technologies are implemented, and demand for these products increases in the market place, we are concerned that the EWR component categories are unsuitable for capturing these newer technologies. As a result, today we propose to add components ESC, RSC, FCA, LDP and backover prevention to EWR reporting.

1. Stability Control Systems

We propose to add a new component for light vehicles, buses, emergency vehicles and medium/heavy vehicles in 49 CFR 579.21(b)(2) and 49 CFR

579.22(b)(2) for stability control systems.
6

On April 6, 2007, NHTSA published a final rule adding Federal Motor Vehicle Safety Standard (FMVSS) No. 126
Electronic Stability Control Systems.
72 FR 17236, 17310, as amended 72 FR 34410 (June 22, 2007). FMVSS No. 126 requires that all new light vehicles, with certain exceptions, must be equipped with an ESC system meeting the standard's requirements. As it pertains to buses, emergency vehicles and medium-heavy vehicles, NHTSA studies indicate that stability control systems provide potential safety benefits for heavy trucks.
7

In addition, for some manufacturers, stability control systems are standard on all heavy trucks.
8

As a result of FMVSS No. 126 and safety benefits of stability control systems on heavy vehicles, the number of vehicles containing stability control systems is increasing rapidly and potentially could include most of the vehicle fleet.

6
Manufacturers may market or refer to ESC as electronic stability program, vehicle stability control, rollover stability control, vehicle dynamics integrated management system, or active skid and traction control, among others.

7

See
DOT HS 811 205, October 2009, “Safety Benefits of Stability Control Systems for Tractor-Semitrailers” located at
http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/2009/811205.pdf

and
DOT HS 811 233, November 2009, “Heavy Truck ESC effectiveness Study Using NADS” located at
http://www.nhtsa.gov/DOT/NHTSA/NRD/Multimedia/PDFs/Crash%20Avoidance/2009/811233.pdf
.

8

Not your daddy's brakes: Technology advances allow for shorter stopping distances and the development of stability and collision avoidance systems, but there is a need for good maintenance,
Fleet Equipment, March 22, 2010 (located at
http://www.fleetequipmentmag.com/Item/71983/not_your_daddys_brakes.aspx
).

In addition to stability control systems, RSC systems are increasingly being installed on heavy trucks. RSC detects a high lateral acceleration condition that could lead to a truck rolling over, and intervenes by automatically applying the vehicle's brakes and/or reducing engine power and applying the engine retarder. We are proposing to include RSC in the definition of stability control in this notice for medium-heavy trucks. In addition, while trailer-based RSC systems are available, we are not proposing to include reporting of RSC incidents by trailer manufacturers at this time. RSC systems are installed predominantly on powered vehicles such as truck tractors, rather than trailers, in the current marketplace.

The EWR regulation currently does not have a specific component for stability control issues.
See
49 CFR 579.21(b)(2) and 579.22(b)(2). Light vehicle manufacturers report ESC issues under “03 service brake system” and medium-heavy vehicle manufacturers report stability control issues under “03 service brake, hydraulic” and “04 service brake, air” because those definitions include stability control. As a result, potential stability control issues may be masked within the broader service brake category, making NHTSA unable to examine and detect potential safety concerns that may be associated directly with a vehicle's stability control system. Adding an ESC component category to light vehicles and stability control and/or RSC to buses, emergency vehicles and medium-heavy vehicles reporting categories will allow NHTSA to capture data on this mandatory system on light vehicles and new system on medium-heavy trucks and analyze stability control data for potential defects.

We propose to use the ESC definition found in 49 CFR 571.126.S4 for light vehicles. We propose to define ESC for buses, emergency vehicles, and medium-heavy vehicles as a system that has all the following attributes:

• That augments vehicle directional stability by applying and adjusting the vehicle brake torques individually at each wheel position on at least one front and at least one rear axle of the vehicles to induce correcting yaw moment to limit vehicle oversteer and to limit vehicle understeer;

• That enhances rollover stability by applying and adjusting the vehicle brake torques individually at each wheel position on at least one front and at least one rear axle of the vehicle to reduce lateral acceleration of a vehicle;

• That is computer-controlled with the computer using a closed-loop algorithm to induce correcting yaw moment and enhance rollover stability;

• That has a means to determine the vehicle's lateral acceleration;

• That has the means to determine the vehicle's yaw rate and to estimate its side slip or side slip derivative with respect to time;

• That has the means to estimate vehicle mass or, if applicable, combination vehicle mass;

• That has the means to monitor driver steering input;

• That has a means to modify engine torque, as necessary, to assist the driver in maintaining control of the vehicle and/or combination vehicle; and

• That, when installed on a truck tractor, has the means to provide brake pressure to automatically apply and modulate the brake torques of a towed semi-trailer.

RSC has similar attributes related to rollover stability. We propose to define RSC as a system that has the following attributes:

• That enhances rollover stability by applying and adjusting the vehicle brake torques to reduce lateral acceleration of a vehicle;

• That is computer-controlled with the computer using a closed-loop algorithm to enhance rollover stability;

• That has a means to determine the vehicle's lateral acceleration;

• That has the means to determine the vehicle mass or, if applicable, combination vehicle mass; That has a means to modify engine torque, as necessary, to assist the driver in maintaining rollover stability of the vehicle and/or combination vehicle; and

• That, when installed on a truck tractor, has the means to provide brake pressure to automatically apply and modulate the brake torques of a towed semi-trailer.

Recent investigative activities and manufacturer recalls illustrate that adding a stability control component category likely will assist NHTSA to uncover potential safety issues. The agency has opened several light vehicle ESC investigations since 2007 that under current EWR reporting is masked by light vehicle manufacturers reporting ESC issues under service brake system:

• PE08-056 and EA09-002 involved alleged ESC malfunctions on 2005-2006 Chevrolet Corvettes. The subject vehicles are allegedly experiencing sudden and unexpected inappropriate brake application to one or more wheels causing the ESC to malfunction. This investigation resulted in a recall (10V172).

• PE08-072 and EA09-006 involved alleged ESC and/or Traction Control System (TCS) malfunctions on 2003 Toyota Sequoias. The subject vehicles are allegedly experiencing sudden and unexpected inappropriate brake application to one or more wheels causing the ESC to malfunction. This investigation resulted in a recall (10V176).

In addition, there have been eleven (11) light vehicle recalls
9

due to ESC problems and three (3) medium-heavy vehicle recalls
10

due to stability control problems. The agency believes that stability control issues are likely to increase as vehicle manufacturers add stability control to their fleets. In our view, it is important to capture EWR data on this key safety component, supplementing NHTSA's traditional screening methods to assist in

identifying potential safety issues sooner.

9
The light vehicle recalls are designated NHTSA recall nos.: 98V080, 04V554, 05V119, 05V120, 05V177, 05V316, 08V645, 09V122, 09V130, 09V187, and 09V280.

10
The medium-heavy vehicle recalls are designated NHTSA recall nos.: 05V543, 09V115, and 09V196.

The Alliance's comments to the December 2008 NPRM opposed adding an ESC component, citing both substantive concerns and cost burdens. The Alliance contends that most consumers will be unaware whether ESC was activated or operated properly during an accident. In addition, because ESC shares components with other systems, the Alliance states that it will be difficult for manufacturers to ascertain whether a consumer complaint, warranty claim, field report or other item reportable under EWR should be included in the ESC category. The Alliance also asserts that adding an ESC category would require a substantial investment.

The agency acknowledges that in some instances consumers may not perceive stability control problems during a crash or will be unable to distinguish stability control problems from problems with other components. This may occur when a consumer communicates through a complaint or a property damage claim to the manufacturer. Although there may be some of these instances, the agency believes that misidentification of stability control complaints will be negligible. The agency receives vehicle owner questionnaires (consumer complaints) reporting potential problems with ESC. Furthermore, consumer complaint data represent only 5 percent and property damage claims represent less than 1 percent of the EWR aggregate data for the service brake component. Consumer complaints and property damage claims data are likely to be analyzed by a dealer's technician or manufacturer's representative, who can identify customers' concerns and classify them accordingly as either stability control or another component.
11

11
ODI recently reviewed consumer complaints submitted to the agency by a manufacturer in the context of a follow-up information request on EWR service brake data. ODI was able to classify the manufacturer's consumer complaints into brake and ESC issues based on the text associated with each consumer complaint.

The bulk of the EWR data for the service brake component consists of warranty claims and field reports. Manufacturers likely have the capability to identify and report specific problems associated with stability control in warranty claims and field reports. Manufacturers of light vehicles have elaborate warranty systems that capture information about discrete components and service codes. Manufacturers also track issues identified by their representatives in the field. These data are valuable to manufacturers because they are the primary sources for manufacturers to identify problems, and to monitor quality and in-process improvements. With the ability to identify specific issues through service codes and field inspections, manufacturers should be able to code stability control issues appropriately.

Adding a new component to the light vehicle, bus, emergency vehicle and medium-heavy vehicle EWR reporting is likely to create a one-time cost for manufacturers to amend their reporting template and revise their software systems to appropriately categorize the stability control system data. We do not believe this cost will be substantial or pose an undue burden on manufacturers. In the agency's view, as discussed above, stability control is an important required component for vehicle control and a malfunction can have an impact on vehicle safety. Capturing data on this new technology will assist the agency in identifying potential problems sooner. Because the number of vehicles with stability control is increasing rapidly and all light vehicles manufactured after September 1, 2011 must have ESC, we believe that it is appropriate for the agency to start collecting EWR data on this specific component.

Therefore, we propose to amend 49 CFR 579.21(b)(2) and 49 CFR 579.22(b)(2) to add Stability Control System to the list of components in that section. We also propose to amend 49 CFR 579.4(b) to add the regulatory definition of ESC systems, found in 49 CFR 571.126.S4,
12

to add definition of stability control and RSC for buses, emergency vehicles, and medium-heavy vehicles, and to amend the definition of “service brake system” to remove stability control from the definition. We seek comments on our proposal to amend 49 CFR 579.21(b)(2) and 49 CFR 579.22(b)(2) to add the component “stability control system.” We also seek comments on the proposed definition for this component.

12
FMVSS No. 126 defines Electronic Stability Control system or ESC system to mean a system that has all of the following attributes:

(1) That augments vehicle directional stability by applying and adjusting the vehicle brake torques individually to induce a correcting yaw moment to a vehicle;

(2) That is computer-controlled with the computer using a closed-loop algorithm to limit vehicle oversteer and to limit vehicle understeer;

(3) That has a means to determine the vehicle's yaw rate and to estimate its side slip or side slip derivative with respect to time;

(4) That has a means to monitor driver steering inputs;

(5) That has an algorithm to determine the need, and a means to modify engine torque, as necessary, to assist the driver in maintaining control of the vehicle; and

(6) That is operational over the full speed range of the vehicle (except at vehicle speeds less than 20 km/h (12.4 mph), when being driven in reverse, or during system initialization).

2. Forward Collision Avoidance and Lane Departure Prevention

In addition to adding a component category for ESC, we propose to add Forward Collision Avoidance (FCA) and Lane Departure Prevention (LDP) system components for light vehicles in 49 CFR 579.21(b)(2). These emerging crash avoidance technologies have been in development for some time and are appearing in the current light vehicle fleet. As these new technologies are implemented, and demand increases, we are concerned that the EWR component categories will not capture them. NHTSA believes it is appropriate to add these technologies to EWR now.

An FCA system monitors and detects the presence of objects in a vehicle's forward travel lane and alerts the driver by means of an audible and/or visual warning of a potential impact with the object. FCA systems seek to warn drivers of stopped, decelerating or slower moving vehicles in the vehicle's lane of travel in order to avoid collisions. Some FCA systems may also assist with driver's braking or automatically brake to avoid collisions. Manufacturers may market or refer to this crash-avoidance technology as forward collision warning (FCW), predictive brake assist, crash imminent braking, dynamic brake support, collision warning system, collision warning with brake support, collision mitigation brake system, pre-sense or pre-safe systems, pre-collision system, collision warning with brake assist, and/or collision warning with auto brake, among other things. We propose to define FCA as a system:

• That has an algorithm or software to determine distance and relative speed of an object or another vehicle directly in the forward lane of travel; and

• That provides an audible, visible, and/or haptic warning to the driver of a potential collision with an object in the vehicle's forward travel lane.

The system may also include a feature:

• That pre-charges the brakes prior to, or immediately after, a warning is issued to the driver;

• That closes all windows, retracts the seat belts, and/or moves forward any memory seats in order to protect the vehicle's occupants during or immediately after a warning is issued; or

• That applies any type of braking assist or input during or immediately after a warning is issued.

FCA systems generally employ radar, laser and/or camera-based sensors to detect objects in front of the vehicle. Toyota Motor Corporation's Pre-Collision System (PCS) utilizes a radar-based system. Nissan's Infiniti brand offers a laser-based system. Toyota's Advanced Pre-Collision System combines both a radar and camera. For FCA reporting, we anticipate manufacturers will submit EWR data related to these systems and their specific components. Where an issue arises involving a component that has more than one function, we propose that manufacturers report EWR data based upon the functionality of the component as reported in the underlying claim, notice, warranty claim, complaint, property damage claim or field report.

An LDP system warns a driver that his or her vehicle is exiting a travel lane and may automatically provide steering input to help the driver maintain lane position. Manufacturers may market or refer to this crash-avoidance technology as lane departure warning, lane keeping assist, lane detection algorithm, lane assist, and/or lane monitoring systems, among others. These systems generally use a small camera to detect and track lane markings and provide an audible and/or visible warning to the driver if the vehicle is in danger of crossing the lane line unintentionally. Accordingly, we propose to define LDP as a system:

• That has an algorithm or software to determine the vehicle's position relative to the lane markers and the vehicle's projected direction; and

• That provides an audible, visible, and/or haptic warning to the driver of unintended departure from a travel lane.

The system may also include a feature:

• That applies the vehicle's stability control system to assist the driver to maintain lane position during or immediately after the warning is issued;

• That applies any type of steering input to assist the driver to maintain lane position during or immediately after the warning is issued; or

• That applies any type of braking pressure or input to assist the driver to maintain lane position during or immediately after the warning is issued.

Most LDP systems function through cameras placed on the windshield that detect lane markers in front of the vehicle and calculate the vehicle's position relative to the lane markers. For LDP reporting, we anticipate manufacturers will submit EWR data related to these systems and their components. When an issue arises with a component that has more than one function, we propose that manufacturers report EWR data based upon the functionality of the component as reported in the underlying claim, notice, warranty claim, complaint, property damage claim or field report.

While FCA and LDP are relatively new technologies, their use is increasing. Registration data indicates that there are over 769,000 and 657,000 registered vehicles equipped with FCA and LDP systems, respectively.
13

The latest production data from EWR indicate that the total number of vehicles with FCA and LDP systems is now 1,656,000 and 1,292,000, respectively.
14

13
RL Polk Registration data, July 1, 2009.

14
EWR Production Data, 3rd quarter of 2010.

NHTSA is encouraging deployment of these important crash avoidance systems by notifying consumers which vehicles offer them through the New Car Assessment Program. On July 11, 2008, NHTSA published a final decision notice in the
Federal Register
announcing changes to the New Car Assessment Program (NCAP) for model year 2010. This change was delayed until model year 2011. 73FR 79206. Starting with model year 2011 vehicles, NHTSA recommends ESC, FCW and LDW systems that pass the NCAP performance tests on the Web site
www.safercar.gov.
73 FR 40016, 40034. The agency believes that adding these technologies in NCAP will increase consumer awareness of these beneficial technologies and spur market demand. 73 FR 40033. We note that today's proposed EWR components FCA and LDP have slightly different naming conventions than the NCAP naming conventions of FCW and LDW. Both EWR's and NCAP's definitions capture basic warning functions of these technologies, but the EWR definition is more generic than NCAP due to the agency's attempt to capture future versions of these systems that the agency had not made a determination whether these systems are beneficial and therefore should receive additional credit under NCAP.

Adding FCA system and LDP component categories to the light vehicle reporting category will assist NHTSA in identifying potential safety issues for these critical safety systems. The EWR regulation currently does not have a specific component for FCA and LDP issues.
See
49 CFR 579.21(b)(2). Manufacturers may report FCA and LDP issues under “01 steering system,” “03 service brake system,” or “18 vehicle speed control.” As a result, potential FCA and LDP issues will be masked within these broader categories, making NHTSA unable to examine and detect potential safety concerns that may be related to a vehicle's FCA or LDP systems. Adding these component categories to light vehicle reporting will allow NHTSA to obtain data on these important safety systems and analyze them for potential safety concerns.

Adding FCA and LDP as component categories to the light vehicle EWR reporting will require manufacturers to incur a one-time cost to amend their reporting template and revise their software systems to appropriately categorize the data. We do not believe these costs will be substantial or pose an undue burden.

3. Backover Prevention

In addition to adding component categories for ESC, FCA, and LDP, we propose to add a component category for systems designed to mitigate backover crashes for light vehicles in 49 CFR 579.21(b)(2). On December 7, 2010, NHTSA published an NPRM proposing to amend FMVSS No. 111,
Rearview Mirrors,
to expand the current rear visibility requirements for all light vehicles under 10,000 pounds Gross Vehicle Weight Rating by specifying an area behind the vehicle that a driver must be able to see when the vehicle is in reverse.
See
75 FR 76186. The agency estimates that on average there are 292 fatalities and 18,000 injuries (3,000 of which NHTSA estimates are incapacitating) resulting from backover incidents every year. Of those, 228 fatalities and 17,000 injuries were attributed to backover incidents involving light vehicles under 10,000 pounds.
Id.
at 76187. While many manufacturers currently offer vehicle models with some form of a backover prevention system, in the near term NHTSA believes that manufacturers would meet these new requirements with a rear visibility system that includes a rear-mounted video camera and an in-vehicle visual display. As a result of the rulemaking and the acceptance of backover technologies in the market place, the agency believes that the number of vehicles utilizing some form of a backover prevention system will increase dramatically and that over time these systems will take on different trade names and include additional functionality not present today.

For the purposes of EWR, NHTSA is defining a backover prevention system as a system that provides a rearview image to a driver to prevent a vehicle from striking an individual or other object while traveling in reverse. This definition is similar to the definition in the December 2010 NPRM. Therefore, we propose to define backover prevention as a system that has:

• A visual image of the area directly behind a vehicle that is provided in a single location to the vehicle operator and by means of indirect vision.

We are proposing to define a backover detection system as a system that provides a visual image to the rear of the vehicle or a sensor-based system that provides a warning to the driver because manufacturers are currently using these types of systems. NHTSA estimates that 19.8 percent of MY 2010 light vehicles have an image-based backover prevention system.
15

15
Preliminary Regulatory Impact Analysis, Backover Crash Avoidance Technologies NPRM FMVSS No. 111.

For backover prevention reporting, we anticipate manufacturers will submit EWR data related to these systems and their components. When an issue arises with a component that has more than one function, we propose manufacturers report EWR data based upon the functionality of the component as reported in the underlying claim, notice, warranty claim, complaint, property damage claim or field report.

The agency believes these measures will enhance its ability to identify and address potential safety defects related to this important safety system that is already in the market. The EWR regulation currently does not have a specific component for backover prevention issues.
See
49 CFR 579.21(b)(2). Currently, manufacturers may report backover prevention issues under “13 visibility” or “11 electrical system.” As a result, potential backover prevention issues will be masked within these broader categories, making NHTSA unable to examine and detect potential safety concerns that may be associated directly with a vehicle's backover prevention systems. Adding this component category to light vehicle reporting will allow NHTSA to obtain data on these important safety systems and analyze it for potential safety concerns.

Therefore, we propose to amend 49 CFR 579.21(b)(2) to add FCA, LDP, and backover prevention systems to the list of components in that section. We also propose to amend the definition of “visibility” to remove an exterior view-based television system for light vehicles. We seek comments on our proposal to amend 49 CFR 579.21(b)(2) to add the components “forward collision avoidance system,” “lane departure prevention system,” and “backover prevention system.” We also seek comments on the proposed definitions for these components.

F. Proposed EWR Reporting Templates

Based upon the proposed amendments for light vehicle manufacturers to provide the vehicle type and fuel and/or propulsion type in their quarterly EWR submissions, and adding ESC, FCA, LDP, and Backover Prevention system components to EWR reporting, we propose to amend the EWR light vehicle production, death and injury, and aggregate reporting templates. The proposed light vehicle reporting templates are located in Appendix A to this NPRM. Figure 1 represents the proposed amended light vehicle production template, Figure 2 represents the proposed amended light vehicle death and injury reporting template and Figure 3 represents the proposed amended light vehicle aggregate reporting template. Appendix B contains the proposed bus, emergency vehicle and medium-heavy vehicle reporting templates that incorporate the proposed amendment to add stability control to these vehicles. Figure 4 represents the proposed amended bus aggregate reporting template, Figure 5 represents the proposed amended emergency vehicle aggregate reporting template and Figure 6 represents the proposed amended medium-heavy vehicle aggregate reporting template. We seek comments on our proposed reporting templates.

G. Electronic Submission of Annual Substantially Similar Vehicle Lists

The foreign defect reporting regulations, 49 CFR part 579, subpart B, require manufacturers selling or offering motor vehicles for sale in the United States to submit annually a document that identifies each model of motor vehicle that the manufacturer sells or plans to sell during the following year in a foreign country that the manufacturer believes is identical or substantially similar to a motor vehicle sold or offered for sale in the United States (or to a motor vehicle that is planned for sale in the United States in the following year) and each such identical or substantially similar vehicle sold or offered for sale in the United States. 49 CFR 579.11(e). Manufacturers may submit this list to NHTSA by mail, facsimile or by email. 49 CFR 579.6. When a manufacturer notifies NHTSA of a safety recall or other safety campaign in a foreign country, the agency searches the manufacturer's substantially similar list for vehicles in the U.S. that may contain a similar problem as identified in the foreign recall or campaign.

Unlike EWR reports, manufacturers are not required to upload their substantially similar list directly to the Artemis database. However, most vehicle manufacturers upload their substantially similar lists directly to Artemis through the agency's secure Internet server. These manufacturers use a template that is available on the agency's Web site, located at
http://www-odi.nhtsa.dot.gov/ewr/xls.cfm
. The agency would prefer that manufacturers upload their lists in to Artemis because submissions by mail, facsimile, or email cannot be uploaded to Artemis and are not readily searchable. To ensure that NHTSA can readily search all substantially similar lists, we propose to amend section 579.6(b) to require that the annual list of substantially similar vehicles required by 579.11(e) be uploaded directly to the Artemis database.

We seek comments on our proposal to require manufacturers to submit their substantially similar list directly to the Artemis database.

H. VIN Submission and Recall Remedy Completion Information for Safety Recalls

We are proposing a number of changes in the regulations governing safety recalls in an effort to improve the information the agency receives from recalling manufacturers about the motor vehicles and equipment they are recalling, plans for remedying those products, and distribution of that information to the affected public.

The first of these changes proposes to require larger volume manufacturers, whose safety recalls address the vast majority of vehicles recalled, to provide to the agency VIN information for the vehicles covered by their respective recall campaigns. This proposed change is aimed, among other things, to accomplish the MAP-21 Act mandate that the Secretary require motor vehicle safety recall information be made available to the public on the Internet, be searchable by vehicle make and model and vehicle identification number (VIN), be in a format that preserves consumer privacy, and includes information about each recall that has not been completed for each vehicle.
See
MAP-21 Act, Public Law 112-141, § 31301(a), 126 Stat 405, 763.With section 31301's mandate to make recall safety information publicly available, we believe the best way to meet MAP-21's requirement is to increase the safety recall information currently available on the agency's Web site. The agency makes a considerable amount of safety recall information available to the public. VIN information from vehicle manufacturers will be used to support an enhanced version of the

agency's current recalls look-up service available online at
www.safercar.gov
. It will enable vehicle owners and other interested users to determine with confidence whether a specific vehicle has a safety defect or noncompliance that has not been remedied under the manufacturer's remedy program. Our current recalls look-up offers the functionality of searching for vehicle safety recalls, among other ways, through a make and model search (and so meeting an express requirement of section 31301(a) of MAP-21 Act), but it does not offer information for any one, specific vehicle. We expect that providing vehicle-specific recalls information will have a positive impact on vehicle recalls completions, thereby reducing the risk of injuries and fatalities associated with motor vehicle safety defects and noncompliances with minimum FMVSS.

Our service will cover all major makes, models, and model years, so that consumers have a “one stop shop” for safety recall information on vehicles they may own or consider purchasing. Owners will not need to search multiple Web sites for recalls information regarding their vehicles. The search functionality and returned information will be consistent for all recalls, major manufacturers, and light vehicles.

Additionally, by receiving recall information by VIN, NHTSA's established recall email subscription service can immediately notify its users, over 70,000 at present and growing, when their VIN has been included in a recall. This benefit will be especially important when a recall involves an immediate and imminent safety threat. Consumers will be able to quickly conclude whether a serious safety concern they learn about through television or social media is linked to their particular vehicle.

We propose to amend subsection 573.6(c)(3) to require larger volume motor vehicle manufacturers that manufacture 25,000 or more light vehicles annually or 5,000 or more motorcycles annually to submit electronically the VIN of each vehicle that potentially contains a defect or noncompliance, and will be covered by a safety recall campaign. As with other information required to be submitted on vehicles being recalled, manufacturers would be required to submit this information when submitting a Part 573 Report, unless that information was not available at that time, in which case, it would be submitted when it became available, or, under a proposal addressed later in this notice, within five working days of when that VIN information becomes available.
16

16
Our proposal to change from a less precise “as it becomes available” requirement to a more precise five working day requirement is addressed in section L,
infra
.

Our proposal is consistent with recommendations to improve recall completion rates (the percentage of the recalled vehicle population that has the recall remedy performed) made by the U.S. General Accountability Office (GAO) in response to its review of NHTSA's safety recalls.
See
U.S. General Accountability Office, NHTSA Has Options to Improve the Safety Defect Recall Process, GAO-11-603 (2011), available in the agency's rulemaking docket.

Our proposal would impose little to no additional burden on manufacturers. Vehicle manufacturers already acquire VIN information from state motor vehicle agencies for purposes of conducting recalls. This is because, under the Safety Act, and its implementing regulations, a manufacturer must notify each person who is registered under State law as the owner of the vehicle of the recall, and registered owner information is maintained on a VIN basis by the respective State agencies.
See
49 U.S.C. 30119(d)(1)(A) and 49 CFR 577.7(a)(2)(i). In addition, larger vehicle manufacturers submit specific VINs in connection with certain aspects of the Early Warning Reporting Rule. 49 CFR 579.21, 22, 23, and 24. The agency simply proposes here that vehicle manufacturers submit the VIN information in a prescribed format. Indeed, many manufacturers already provide VIN-based recall look-up functions on their Internet or other commercial Web pages.
17

17
See e.g.,
www.carfax.com,
Chrysler:
http://www.chrysler.com/en/owners/and
Ford:
http://www.ford.com/owner-services/customer-support/recall-information
.

In our view, there are benefits to having NHTSA offer a similar application for owners and consumers that cuts across all major makes, models, and model years, so that consumers have a “one stop shop” for safety recall information on vehicles they may own or consider purchasing. We believe that providing easy access to this important safety information will facilitate notifications of a recall to owners and encourage owners and consumers to obtain the recall remedy. We believe this would result in increased completion rates and a reduction of the number of unsafe vehicles on U.S. roads.

NHTSA must obtain information from the manufacturer on whether the recall remedy has been performed on each recalled vehicle in order to provide full information to a consumer and to meet the MAP-21 Act's requirement that the Secretary require “information about each recall that has not been completed for each vehicle.” Otherwise, the recalls look-up function we envision will tell a consumer only that a vehicle was subject to a safety recall at some point, and not whether the remedy was performed. With the added recall information from large volume light vehicle manufacturers, NHTSA can inform consumers that a vehicle is subject to a safety recall and whether the remedy identified by the manufacturer has been performed and meet MAP-21's express provision to make this information available to the public. The information must be up-to date, so we propose that manufacturers electronically submit on a daily basis the recall remedy status of each vehicle covered by a recall.

We propose that manufacturers provide a vehicle's remedy status using the categories required in the agency's quarterly reporting requirements: Unremedied; inspected and repaired; inspected and determined not to require repair; exported; stolen; scrapped; the owner was unable to be notified (returned mail); or other (for whatever other reason the manufacturer could not remedy the vehicle.
See
49 CFR 573.7(b)(4) and (5).

We propose an additional category to account for the period between the time a manufacturer has decided to conduct a recall and notified NHTSA, and the time it notifies owners of the availability of the free remedy. This pre-recall launch or “recall remedy not yet available” category would inform an owner that his or her vehicle is subject to a recall, but the remedy is not yet available. We propose that for VINs designated by the manufacturer as falling within the pre-recall launch period, our service confirm that the vehicle is subject to the manufacturer's recall, so that an owner is not misinformed as to his/her vehicle's inclusion, and knows that the remedy campaign has not been launched. Our proposal expands the information we currently provide via our recalls search function where we summarize the recall campaign and inform when the recall is expected to start and provide a telephone number for owners to contact the manufacturer for further information. Under our proposal, more information would be available because the manufacturer will now have the ability to designate by VIN this pre-recall launch status in the event, due to parts delays or other circumstances, the

manufacturer is unable to offer the free remedy to all involved owners on the same date.

We further propose a “deleted” category that will enable a manufacturer to remove vehicles from a recall population. For example, a manufacturer may have mistakenly assessed the scope of vehicles affected by a particular safety defect or noncompliance condition and will then need to adjust the population, by adding or removing vehicles and their respective VINs.

Also, we propose to require that manufacturers provide the date the recall remedy was performed, where applicable, so that we can also provide that information to interested owners and consumers.

Under our proposal, a manufacturer would first submit VIN data for vehicles covered by a recall when submitting a Part 573 Report (or, if that information is not available at that time, within the prescribed time of when it becomes available, typically within a matter of weeks). The information would be submitted electronically in a table format. Manufacturers would be required to list VINs vertically in rows with a horizontally adjacent column for reporting the current recall remedy status category, plus the pre-recall launch category, and a column for reporting the date the recall remedy was performed (where applicable). An example of the table we propose is located in Appendix C, Form C1, attached to this notice.

Thereafter, each day at a time specified by the agency, the manufacturer would submit to NHTSA the same table, but now limited to a list of VINs for which the recall remedy status had changed from the previous day's submission, complete with the designations reflecting the new status. Also, if there were changes to the recall population, either additions or subtractions, the manufacturer would submit those VINs as well. VINs that need to be added to a manufacturer's VIN list would be included in its daily update to the agency with an identification of the date of the addition. VINs that need to be removed from a manufacturer's VIN list, due to later information establishing that the vehicle should not have been recalled, for one example, would be appropriately coded. We further propose to include a comment column that can be used to attach any notes, up to 30 characters, needed to help describe the status of a particular VIN. Appendix C, Form Cl, demonstrates these functions.

A manufacturer's VIN data submission would be an automated process accomplished through a secure server using secure file transfer protocol (SFTP). The daily VIN updates of vehicles covered in a recall along with the remedy status would be updated using a NHTSA specified application programming interface (API). The manufacturer's server would post to a secure server, operated by the agency, at a set time each day. Only changes to the previous day's information would be submitted, thereby greatly limiting the volume of information being transferred from the manufacturer to the agency. After its submission is completed and verified, the manufacturer would receive an acceptance notice. If any portion of the submission was rejected, that information would be returned to the manufacturer on a secure, NHTSA operated Recalls Portal. The agency anticipates that its system will provide sufficient detail (to the specific recall and VIN level) to the manufacturer when information is rejected in order for the manufacturer to quickly identify and resolve any problems.

The requirement to submit VIN information electronically is not highly burdensome. The information we seek in today's proposal is already captured by manufacturers and submitted to NHTSA in part. Under 49 CFR 573.8, manufacturers are required to maintain information, including VINs, on all vehicles involved in a recall notification. These lists are maintained in computer information storage devices and must be maintained for five years. However, because a manufacturer's obligation to perform a recall remedy does not expire, manufacturers must maintain records that, at a minimum, reflect the current recall remedy status of the vehicles covered by their campaigns. In addition, manufacturers are currently required to submit quarterly reports that provide the recall remedy status of vehicles in a safety recall campaign. In order to maintain recall data and determine recall remedy status, most manufacturers use software and create large electronic databases that are integrated with their dealer network. Such electronic databases record VIN data and recall remedy status information, update it, and synchronize this information on regular intervals against their systems for processing and paying their dealerships or repair facilities to perform the recall remedy. Accordingly, larger volume manufacturers will only have to incur a one-time cost to reconfigure their systems to transmit VIN data and recall remedy status information in the electronic format NHTSA requires.

The MAP-21 Act specifies that any rules issued pursuant to the Act will “permit a manufacturer a reasonable period of time after receiving information from a dealer with respect to a vehicle to update the information about the vehicle on the publicly accessible Internet Web site.”
See
MAP-21 Act at section 31301(b)(3). Given that paragraph (b) refers back to the information in paragraph (a) in section 31301, we read (b)(3) to include completion of the safety recall remedy offered by the manufacturer on that vehicle. In this proposed rule, we do not propose to define what that reasonable period of time is. In the agency's experience, we have not encountered situations involving large volume manufacturers failing to update their records on recalls completions by dealers. Accordingly, we do not believe these manufacturers will inordinately delay updating their internal recalls completion records and thereby stymie the timeliness and accuracy of the VIN look-up service we propose to meet MAP-21's requirements. We seek comments on the agency's decision not to define the term “reasonable period of time.” Due to the statutory requirement under the Safety Act that a manufacturer must remedy recalled vehicles when presented, manufacturers maintain records reflecting a vehicle's recall remedy status indefinitely. 49 U.S.C. 30120. Although manufacturers maintain such records indefinitely, the utility and safety benefit of NHTSA receiving such records decreases over time. Accordingly, we propose to limit the requirement to provide electronic updates to 10 years from the date a manufacturer first supplied the VIN list for a recall. Manufacturers are only required to provide a free remedy under the Safety Act for vehicles that were bought by the first purchaser less than 10 calendar years from when the manufacturer notified its owners of the safety defect or noncompliance.
See
49 U.S.C. 30120(g). Also, in the agency's experience and, based upon our interactions with manufacturers, very few vehicles can be expected to be presented for remedy 10 years after a recall notification has been made. In our view, very few consumers will utilize our VIN look-up service to learn of recalls on their vehicles that are over a decade old. Furthermore, the utility of, and safety benefits derived from, a VIN-lookup service will not be adversely affected with our proposed ten-year limit.

In order to offer a functional VIN recall search tool and to provide effective search capability at launch, we require a database of recalled vehicle VIN data. Otherwise, when our VIN

recall search tool is launched, there will be very little utility to the tool and users will be discouraged from using the tool, thereby undermining our efforts to facilitate owner notification and reducing the number of unsafe vehicles on U.S. roadways. Therefore, if the VIN proposal is adopted, we propose to require manufacturers, within 180 days of the effective date of this rule, to submit VIN data for each vehicle covered by a recall filed within 24 months prior to the effective date of this VIN submission requirement. To clarify, “filed” means a manufacturer submitted a Part 573 defect or noncompliance report indicating its intention to conduct a recall, except those manufacturers that stated an intent to file a petition for an exemption to the recall requirements on the basis that the noncompliance is inconsequential to motor vehicle safety (unless, of course the petition was denied in which case the manufacturer would be required to conduct a recall and provide VINs).

A proposal to require VIN data on vehicles covered by recalls filed prior to the MAP-21 Act's enactment is directly contemplated in the Act, which provides that any implementing rulemaking, “shall limit the information that must be made available * * * to include only those recalls issued not more than 15 years prior to the date of enactment of this Act.” See MAP-21 Act, Public Law 112-141, § 31301(b)(1), 126 Stat 405, 763 (July 6, 2012). Accordingly, our proposal to require VIN data on vehicles covered by recalls filed within the prior 2 years' time is well within the agency's discretion. We seek comment on whether to require VIN data on recalls covered by recalls filed in earlier years.

Our proposal to require submission of VIN data to us is limited to larger, light vehicle manufacturers. Although already permissible under section 30119 of the Safety Act,
18

the MAP-21 Act's express grant of authority to the Secretary to require motor vehicle safety recall information to be publicly available provides the agency discretion in determining the information needed to meet the Act's requirement. See MAP-21 Act at section 31301(b). This discretion includes setting parameters that determine which manufacturers must provide recall information for the Internet site that is contemplated under the Act.

18
Vehicle manufacturers must notify NHTSA and provide certain information when they decide to recall their vehicles to remedy a safety defect or noncompliance with a FMVSS. See 49 U.S.C. 30118 and 30119. Under section 30119, NHTSA has considerable discretion to determine the contents of such notices, including content that changes based on the product or manufacturer. 49 U.S.C. § 30119(a). For example, in the case of passenger vehicles, an identification of the vehicles to be recalled is to be made by make, line, model year, and dates of manufacture, whereas other types of vehicles (and items of equipment) are subject to different requirements. Compare 49 CFR 573.6(c)(2)(i) to 49 CFR 573.6(c)(2)(ii), (iii), (iv), and (v).

We propose to limit the VIN submission requirement to manufacturers of 25,000 or more light vehicles, or manufacturers of 5,000 or more motorcycles, manufactured for sale, sold, offered for sale, introduced or delivered for introduction in interstate commerce, or imported into the United States annually.
19

A manufacturer would meet these thresholds if it knows or anticipates it will meet these thresholds by the end of the current calendar, or if it reached those volumes during the previous calendar year.

19
For purposes here, “light vehicle” means any motor vehicle, except a bus, motorcycle, or trailer, with a GVWR of 10,000 lbs or less. 49 CFR 579.4. “Motorcycle” means a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground. 49 CFR 571.3.

Based on current data received by NHTSA's Early Warning Division, this notice includes a list of vehicle manufacturers presently meeting the above stated production thresholds, found in
Appendix E.
At this time, we propose to limit this requirement to these manufacturers because, due to their production volume and their current obligation for EWR reports, these larger manufacturers have the resources to readily and efficiently meet the proposed VIN reporting requirements using the electronic media we propose here.

At this time, we are not proposing to require smaller light vehicle or motorcycle manufacturers to submit VIN data. The costs and burdens of this proposed rule would be greater on these smaller volume manufacturers than for their large volume counterparts. For smaller manufacturers that do not already operate robust computer systems and complex databases, a one-time investment to purchase the needed hardware and software and daily maintenance to meet the VIN requirement could be costly.

If after several years of experience with VIN data, we believe that receiving VIN data from smaller manufacturers would be beneficial, we may propose to include lower volume manufacturers. Of course, nothing prevents these manufacturers from voluntary participation in our VIN look-up service. We solicit comment on our decision to not include lower volume manufacturers in this proposed rule.

Based on feedback we receive about our current recalls look-up service and email recall notification service, we anticipate that the majority of users of our service will be individual consumers or users of light vehicles and motorcycles, rather than medium-heavy commercial vehicle owners and users. The latter tend to communicate directly with the manufacturer or dealerships and rely less upon the Agency for information about recalls or vehicular safety issues. If at a later time, we believe that receiving VIN data from this community would be beneficial, we may amend our rulemaking. As with the smaller volume manufacturers, nothing prevents these manufacturers from voluntary participation. We seek comment on our decision.

Some large light vehicle manufacturers also manufacture medium-heavy vehicles. In some cases, these medium-heavy vehicles fall within the same model family (e.g., Ford F-series vehicles). Accordingly, we clarify that should a light vehicle manufacturer make a defect or noncompliance decision that results in a recall of its light vehicle applications as well as medium or heavier duty applications, then it would be required to provide the VINs on all the recalled vehicles. This is to avoid consumer confusion and possible misinformation from the agency in the event of such recalls. We wish to avoid foreseeable situations where a consumer would hear of a recall in the news media or through our recall notification system, go to our web site with their VIN, and retrieve an erroneous message that the recall does not apply to the vehicle or it is unknown whether it applies. Although we are not proposing to require manufacturers to submit VIN data for recalls that involve only their medium-heavy vehicle applications, we would expect that manufacturers will not bifurcate their defect or noncompliance decision-making and file separate defect or noncompliance reports in order to avoid producing VINs on their medium-heavy vehicle applications in those situations where the same safety defect or noncompliance affects both light and medium-heavy applications. We solicit comments on our approach of requiring light vehicle manufacturers, where they recall vehicles for defects or noncompliances that affect both light and medium-heavy applications, to submit VIN data on all the vehicles being recalled.

Some recalls involve safety defects where the consequences arise as the result of exposure to certain environmental conditions. These are commonly referred to as “regional

recalls,” and in these recalls only the vehicles currently registered, or originally sold or registered, in those areas, are covered by the recall. Consistent with today's proposal to require submission of VINs associated with the recalled population, we clarify that only the VINs of the vehicles covered by the safety recall are to be provided.

To further comply with the directive in the MAP-21 Act, and meet the safety objective of providing the public specific and up-to-date recall information on vehicles, we propose to amend subsection 573.6(c)(3) to add three subparagraphs (i), (ii), and (iii). The first, subparagraph (i), contains requirements for VIN submission as well as recall remedy status for each VIN. Subparagraph (ii) contains the requirement that, on a one-time basis only, manufacturers must submit the VIN information for each vehicle covered by a safety recall filed within 24 months prior to the effective date of this rule. Subparagraph (iii) specifies that any vehicle manufacturer not covered by (i) or (ii), may voluntarily supply VIN information for vehicles it has recalled voluntarily, so long as it submits the information in accordance with the requirements of both (i) and (ii).

We seek comments on our proposal to require a list of VINs for vehicles subject to a recall from larger vehicle manufacturers, as well as our proposal to require these manufacturers to submit once daily any cha

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2012-21574. Public record. Not legal advice.