04-8716. Reporting of Information and Documents About Potential Defects

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Final rule; response to petition for reconsideration.

SUMMARY:

This document grants a petition requesting a clarification of the definition of “field report” under regulations that implement the early warning reporting provisions of the Transportation Recall Enhancement, Accountability, and Documentation (TREAD) Act.

DATES:

Effective Date: The effective date of the amendments made by this final rule is May 17, 2004. Petitions for Reconsideration: Petitions for reconsideration of any amendments made by this final rule must be received not later than June 1, 2004.

ADDRESSES:

Petitions for reconsideration of the amendments made by this final rule must refer to the docket or Regulatory Identification Number (RIN) for this rulemaking, and be addressed to the Administrator, National Highway Traffic Safety Administration (NHTSA). You may submit a petition by any of the following methods:

• Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: [phone].
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal rulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting petitions.

FOR FURTHER INFORMATION CONTACT:

For non-legal issues, contact Jonathan White, Office of Defects Investigation, NHTSA (phone: [phone]). For legal issues, contact Andrew DiMarsico, Office of Chief Counsel, NHTSA (phone: [phone]).

SUPPLEMENTARY INFORMATION:

I. Background

On July 10, 2002, the National Highway Traffic Safety Administration (NHTSA) published a final rule implementing the early warning reporting (EWR) provisions of the Transportation Recall Enhancement Accountability, and Documentation (TREAD) Act, 49 U.S.C. 30166(m) (67 FR 45822).

We received a number of petitions for reconsideration of the final rule, and have responded to most of them in separate rulemaking notices. In response to one of those notices (Notice 4, 68 FR 18136, April 15, 2003), we received one additional petition for reconsideration of the definition of “field report” which was revised by Notice 4.

II. Petition for Reconsideration of the Definition of “Field Report”

In Notice 4, we redefined “field report” as follows:

Field report means a communication in writing, including communications in electronic form, from an employee or representative of a manufacturer of motor vehicles or motor vehicle equipment, with respect to a vehicle or equipment that has been transported beyond the direct control of the manufacturer, a dealer, an authorized service facility of such manufacturer, or an entity known to the manufacturer as owning or operating a fleet, to a manufacturer, regarding the failure, malfunction, lack of durability, or other performance problem of a motor vehicle or motor vehicle equipment, or any part thereof, produced for sale by that manufacturer, regardless of whether verified or assessed to be lacking in merit, but does not include a document covered by the attorney-client privilege or the work product exclusion.

Stephen E. Selander of Southfield, Michigan, filed a petition for reconsideration of the definition of “field report,” with the comment that “a technical amendment is desirable to clarify the definition.” Mr. Selander would redefine “field report” as:

a communication in writing, including communications in electronic form, from an employee or representative of a manufacturer of motor vehicles or motor vehicle equipment, a dealer or authorized service facility of such manufacturer, or an entity that owns or operates a fleet, to the manufacturer regarding the failure, malfunction, lack of durability, or other performance problem of a motor vehicle or motor vehicle equipment, or any part thereof, produced for sale by that manufacturer and transported beyond the direct control of the manufacturer, regardless of whether verified or assessed to be lacking in merit, but does not include documents covered by the attorney-client privilege or the work product exclusion.

The definition suggested by Mr. Selander simply rearranges the elements of the existing definition in a manner that, in our opinion, does clarify its meaning. However, the definition contains one substantive change that we do not accept. With respect to fleets, we note that he would replace the existing phrase “an entity known to the manufacturer as owning or operating a fleet” with “an entity that owns or operates a fleet.” In Notice 4, we redefined the definition of “field report” adopted on July 10, 2002, to include the phrase “known to the manufacturer” in recognition of the assertion by the Alliance of Automobile Manufacturers (the Alliance) that “it is usually not obvious on the face of a written complaint from a customer or other person making the complaint whether that customer owns ten or more vehicles of the same make, model, and model year” (68 FR at 18138). While we are amenable to rearranging the elements of the definition in the manner suggested by Mr. Selander, we are retaining the phrase “known to the manufacturer” in the clause relating to fleets. Finally, in the phrase that ends the definition, relating to the attorney-client privilege and work product exclusions, Mr. Selander uses the plural “documents” where the existing definition uses the singular, “a document.” Upon reflection, we think “any” document preferable. Accordingly, we are granting the petition for reconsideration and amending the definition of “field report” to read as follows:

Field report means a communication in writing, including communications in electronic form, from an employee or representative of a manufacturer of motor vehicles or motor vehicle equipment, a dealer or authorized service facility of such manufacturer, or an entity known to the manufacturer as owning or operating a fleet, to the manufacturer regarding the failure, malfunction, lack of durability, or other performance problem of a motor vehicle or motor vehicle equipment, or any part thereof, produced for sale by that manufacturer and transported beyond the direct control of the manufacturer, regardless of whether verified or assessed to be lacking in merit, but does not include any document covered by the attorney-client privilege or the work product exclusion.

III. Privacy Act Statement

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

IV. Rulemaking Analyses

This notice makes technical changes to the definition of “field report” adopted in Notice 4. The changes made to the early warning reporting regulation by this notice do not alter the burdens and impacts discussed in the Regulatory Analyses in Notice 4. To the extent that the Regulatory Analyses may be relevant to this minor change, the Analyses in Notice 4 (68 FR 18140-18142) are hereby incorporated by reference.

List of Subjects

49 CFR Part 579

• Imports
• Motor vehicle safety
• Motor vehicles
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 49 CFR part 579 is amended as follows:

PART 579—REPORTING OF INFORMATION AND COMMUNICATIONS ABOUT POTENTIAL DEFECTS

1. The authority citation for part 579 continues to read as follows:

Sec. 3, Pub. L. 106-414, 114 Stat. 1800 (49 U.S.C. 30102-103, 30112, 30117-121, 30166-167); delegation of authority at 49 CFR 1.50.

Subpart A—General

2. Section 579.4(c) is amended by revising the definition of “Field report,” to read as follows:

§ 579.4

Terminology.

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(c) Other terms. * * *

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Field report means a communication in writing, including communications in electronic form, from an employee or representative of a manufacturer of motor vehicles or motor vehicle equipment, a dealer or authorized service facility of such manufacturer, or an entity known to the manufacturer as owning or operating a fleet, to the manufacturer regarding the failure, malfunction, lack of durability, or other performance problem of a motor vehicle or motor vehicle equipment, or any part thereof, produced for sale by that manufacturer and transported beyond the direct control of the manufacturer, regardless of whether verified or assessed to be lacking in merit, but does not include any document covered by the attorney-client privilege or the work product exclusion.

* * * * *

Issued on: April 13, 2004.

Jeffrey W. Runge,

Administrator.