2024-18112. Record Retention Requirement

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Department of Transportation

National Highway Traffic Safety Administration

1. 49 CFR Part 576
2. [Docket No. NHTSA-2019-0035]
3. RIN 2127-AL81

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

This rule is being issued pursuant to the Fixing America's Surface Transportation (FAST) Act, which requires the Secretary of Transportation (Secretary) to extend the period of time manufacturers of motor vehicles, child restraint systems, and tires must retain records concerning malfunctions that may be related to motor vehicle safety under the National Traffic and Motor Vehicle Safety Act (Safety Act). Section 24403 of the FAST Act directs the Secretary to issue a rule increasing the record retention period to not less than 10 years, instead of 5 years, as presently required under the regulatory provisions. Pursuant to its delegated authority, NHTSA is updating its regulations in accordance with this mandate to extend the time that manufacturers are required to retain certain records that may be related to motor vehicle safety to 10 years.

DATES:

Effective date: This rule is effective October 15, 2024.

Petitions for reconsideration: Petitions for reconsideration of this final rule must be received not later than September 30, 2024.

ADDRESSES:

Any petitions for reconsideration should refer to the docket number of this document and be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West Building, Fourth Floor, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Michael Kuppersmith, Trial Attorney, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: [phone]).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Record Retention Requirements Under the Safety Act Prior to the FAST Act

III. The Notice of Proposed Rulemaking

IV. The Final Rule

V. Regulatory Analyses and Notices

I. Executive Summary

The FAST Act was signed into law on December 4, 2015. Public Law 114-94. Section 24403 of the FAST Act directs the Secretary of Transportation to increase the amount of time manufacturers of motor vehicles, child restraint systems, and tires are required to maintain records that contain information concerning malfunctions that may be related to motor vehicle safety. In the final rule, the Secretary must lengthen the time that manufacturers must maintain these records to not less than 10 years from the date the records were generated or acquired. Public Law 114-94, sec. 24403(a).

In May 2019, NHTSA proposed amending its regulation to increase the retention period to 10 years and is now finalizing that proposal. Based on NHTSA's experience investigating potential defects, overseeing recalls, and our consideration of the comments, we have determined that finalizing the proposed 10-year records retention requirement would help address the agency's investigative needs while minimizing the burden to manufacturers of motor vehicles and equipment. Thus, this final rule extends the record retention requirement for records required to be maintained under 49 CFR 576.6 to 10 years. NHTSA may consider further extending the retention period in the future.

This final rule does not require manufacturers to retain any new information; it merely requires manufacturers to retain information they are already required to retain under 49 CFR part 576 for a longer period of time. This final rule also does not extend the time period that manufacturers of motor vehicles and motor equipment are required to retain records underlying information reported under 49 CFR part 579.

In accordance with the FAST Act, the extended time period applies to records in manufacturers' possession on the effective date of this rule and records generated or acquired in the future. Public Law 114-94, sec. 24403(b).

II. Record Retention Requirements Under the Safety Act Prior to the FAST Act

Part 576 requires manufacturers of motor vehicles, child restraint systems, and tires to retain “all documentary materials, films, tapes, and other information-storing media that contain information concerning malfunctions that may be related to motor vehicle ( print page 66630) safety.” 49 CFR 576.6; see49 CFR 576.5(a). These records must be maintained for use in the investigation and disposition of possible defects related to motor vehicle safety or noncompliance with safety standards and associated regulations. 49 CFR 576.2. Manufacturers of motor vehicles, child restraint systems, and tires must currently keep the records required to be maintained by 49 CFR 576.6 for 5 years after they are generated or acquired. 49 CFR 576.5(a). Manufacturers of motor vehicles and all manufacturers of motor vehicle equipment must also keep documents underlying reporting required by 49 CFR part 579 for 5 years after they are generated or acquired. 49 CFR 576.5(b). However, according to 49 CFR 576.5(c), manufacturers of motor vehicles and motor vehicle equipment are not required to keep copies of documents reported to NHTSA as required by 49 CFR parts 573, 577, and 579. No manufacturer is required to keep duplicates according to 49 CFR 576.7.

III. The Notice of Proposed Rulemaking

In the notice of proposed rulemaking (NPRM), published May 15, 2019,^[1] NHTSA proposed that manufacturers of motor vehicles, child restraint systems, and tires be required to retain records concerning malfunctions that may be related to motor vehicle safety for 10 years. The NPRM stated that the proposal was based on NHTSA's experience with the increasing age of motor vehicles and motor vehicle equipment and the importance of records from manufacturers, balanced against the agency's desire to avoid unnecessarily burdening manufacturers of motor vehicles and motor vehicle equipment. The NPRM stated that it was NHTSA's belief that a records retention period of 10 years would ensure that manufacturers would preserve records that NHTSA needs to conduct defect investigations without imposing an undue record retention burden on manufacturers.

The NPRM requested comment on manufacturers' current records retention practices; the burden of increasing the records retention period for records required to be maintained by 49 CFR 576.6 to 15, 20, or 25 years; costs that might be associated with storage of electronic records; and the total volume of records retained pursuant to part 576 by a manufacturer.

The NPRM noted that while the average age of the vehicle fleet was 11.6 years in 2016,^[2] a 10-year long records retention period is of significant length when compared to records retention periods of similar scope of other operating administrations within the United States Department of Transportation and other federal agencies that regulate motor vehicles and child products.^[3] The NPRM recognized that, as the length of time that vehicles remain on the road has increased in recent years, the amount of information generated and retained by vehicle manufacturers has also increased. Thus, extending the records retention requirement increases the total volume of information that must be stored.

The NPRM also noted that manufacturers of child restraint systems and tires would also be bound by a lengthened retention period in part 576 even though the free remedy period for tires is 5 years and the useful life of tires and child restraint systems is often less than 10 years.

The NPRM also discussed the several instances in which NHTSA has declined to extend the records retention period in part 576 to correspond to the free remedy period for recalls in 49 U.S.C. 30120. The NPRM stated that, based on NHTSA's experience investigating potential defects and overseeing recalls, many manufacturers of motor vehicles and equipment already retain some of the records subject to this rule for periods of time longer than the current 5-year minimum.

In response to the NPRM, NHTSA received comments from the U.S. Tire Manufacturers Association (USTMA), the Center for Auto Safety, and the Motor and Equipment Manufacturers Association (MEMA).

USTMA stated that it opposed any recordkeeping requirement applicable to tire manufacturers of a period longer than 10 years. USTMA stated that use cases for tires and the typical life span of tire models demonstrates that there is not sufficient justification to extend the records retention requirement longer than 10 years. USTMA further stated that an estimated 80 percent of tires are removed from service on a vehicle within 6 years of manufacture and more than 60 percent of tires are removed from service in fewer than 4 years after their manufacture. USTMA states that while the age of the U.S. vehicle fleet has increased, tire replacement rates have remained static despite improved tire technology because of increases in the total number of vehicle miles traveled per year in the U.S. USTMA pointed to prior instances in which NHTSA had found it was not cost beneficial to extend the records retention requirements in part 576 as evidence that it may not be cost beneficial in the current instance to extend the records retention requirements beyond 10 years.

The Center for Auto Safety stated that a 10-year period was insufficient to ensure that information relevant to safety defects is preserved for review by NHTSA investigators. The Center for Auto Safety further stated that by limiting the records retention requirements in part 576 to 10 years, NHTSA would be limiting the purview of NHTSA's Office of Defect Investigation (ODI) for vehicles older than 5 years to the post-design stage. The Center for Auto Safety maintained that this requirement would limit ODI's ability to investigate design defects. The Center for Auto Safety maintained that often NHTSA's ability to make a defect determination hinges on evidence of a design or manufacturing defect of which relevant documents may have been produced years before vehicles or equipment is manufactured and sold to the public. Thus, a shorter retention period could limit access to these types of records. The Center for Auto Safety noted that at the time of the NPRM, 44 percent of the 43 active Defect Petitions and Preliminary Evaluations and Engineering Analysis investigations involved vehicles or equipment that began production more than 10 years earlier. The Center for Auto Safety asserted that without knowing motor vehicle and equipment manufacturers' current records retention practices, NHTSA has no basis for asserting that extending the records retention period beyond 10 years will burden manufacturers because manufacturers are likely already retaining the records. The Center for Auto Safety specifically called on NHTSA to extend the record retention period to a minimum of 20 years to ensure the agency can effectively evaluate safety defects in both new and older vehicles and to support the agency's recall and enforcement authorities.

MEMA's comments applauded NHTSA for recognizing the differences in record retention burdens between manufacturers of vehicles and those of manufacturers of tires and child restraints. MEMA supported NHTSA's decision to propose only extending the records retention period in 49 CFR 576.6 as well as the decision not to propose extending retention requirements for manufacturers of motor vehicle equipment other than child ( print page 66631) restraints and tires. MEMA also supported the comments of USTMA.

The commenters did not provide information on vehicle or equipment manufacturers' current retention practices or the costs of electronic records storage.

IV. The Final Rule

After considering all available information, including the comments, NHTSA has decided to adopt the changes to the regulation proposed in the NPRM without modification. In the NPRM the agency stated, that based on its experience investigating potential defects and overseeing recalls, many manufacturers of motor vehicles and equipment currently retain records subject to this rule for periods of time longer than currently required. NHTSA also stated a belief that the cost of electronic storage is low and nothing contained in the comments has led NHTSA to change that view. Thus, this final rule will require manufacturers to maintain records for the minimum 10-year period specified in the FAST Act and NHTSA will consider further extending this requirement in the future.

NHTSA acknowledges, as mentioned by the Center for Auto Safety, that in many cases manufacturers of motor vehicles and equipment are currently retaining records for their own business purposes for a period of time longer than 10 years. In its investigations, ODI has been able to receive relevant records from the motor vehicle or equipment manufacturer, even in many instances in which the records are far older than those required to be retained. In response to the Center for Auto Safety's assertion that the age of the vehicles and equipment that are the subject of open investigations and Defect Petitions demonstrate that a 10-year records retention period is insufficient, NHTSA notes that the manufacturers' general practices of retaining records longer than the required period has enabled the agency to obtain relevant records when necessary.

While the burden of extending the records retention requirement in part 576 longer than 10 years may be minimal, the agency has decided that finalizing a 10-year requirement now is appropriate. That action will ensure that records are retained for that longer retention period immediately upon the effective date of this rule and will not foreclose the agency from further consideration of a longer retention period, which could serve as a backstop to ensure that manufacturers continue to retain older records that the agency often considers in its work. NHTSA must also consider the burden of extending the records retention requirements in 49 CFR 576.6 to manufacturers of tires and child restraints, which may not retain records for as long as motor vehicle manufacturers. Furthermore, ODI needs records older than 10 years old from child restraint system and tire manufacturers less often than from vehicle manufacturers. Thus, in the future, NHTSA may consider different retention periods tailored to its needs.

The Center for Auto Safety further asserted that a records retention period of 10 years will limit ODI's oversight of manufacturing and design defects. As noted above, it is ODI's experience that in most cases records are available past the period for which manufacturers are required to keep them. Furthermore, while design and manufacturing records can be helpful to demonstrating the existence of a defect, NHTSA can prove a defect based on performance alone. See49 U.S.C. 30120(a)(3) (defining “defect” as including a defect in performance); U.S. v. Gen. Motors, 518 F.2d 420, 438 (D.C. Cir. 1975).

While we are declining at this time to extend the records retention requirement for records covered by 49 CFR 576.6 for a period longer than 10 years, we do note that the average age of the U.S. on-road vehicle fleet has increased since the NPRM.^[4] Finalizing the proposed retention period now ensures that manufacturers retain records for the minimum 10-year period, in accordance with the FAST Act mandate. The agency will consider a further extension of the requirement in the future.

V. Regulatory Analyses and Notices

A. Executive Order (E.O.) 12866, E.O. 13563, E.O. 14094, and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under E.O. 12866, E.O. 13563, E.O. 14094, and DOT's regulatory policies and procedures. This final rule is nonsignificant under E.O. 12866 and E.O. 14094 and was not reviewed by the Office of Management and Budget (OMB). It is also not considered “of special note to the Department” under DOT Order 2100.6A, Rulemaking and Guidance Procedures.

This rule amends 49 CFR part 576 to require motor vehicle, child restraint system, and tire manufacturers to maintain records for a longer period than the currently required 5-year time period. This rule does not require manufacturers to maintain any records they are not already required to maintain, but instead is designed to lengthen the time manufacturers retain certain records. Extending the period of time to 10 years is expected to lead to various unquantifiable benefits such as formalizing manufacturers' records retention practices and ensuring that, in all instances, records that must be retained under section 576.6 are available in the case of a NHTSA investigation for a minimum of 10 years.

Based on NHTSA's experience conducting investigations and overseeing recalls, NHTSA believes that most manufacturers of motor vehicles subject to this rule already retain records for a longer period than currently specified in part 576. It is NHTSA's position that those manufacturers of motor vehicles or equipment who do currently retain records for longer than 10 years would be able to adjust their record retention systems in response to this rulemaking with minimal cost. Because we expect any costs, benefits, or savings associated with this rulemaking to be minimal, we have not prepared a separate economic analysis for this rulemaking.

B. Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., NHTSA has evaluated the effects of this action on small entities. I hereby certify that this final rule would not have a significant impact on a substantial number of small entities. The rule affects manufacturers of motor vehicles, child restraint systems, and tires, a few of which may qualify as small entities. Such manufacturers are expected to have fewer records, because they produce fewer motor vehicles, child restraint systems, and tires than larger manufacturers. Accordingly, the burden imposed on smaller manufacturers to retain these records should be small. Additionally, this rule will merely extend how long manufacturers keep records that they are already required to maintain under current regulations, amounting to a minimal impact on small businesses. Thus, NHTSA believes that the regulation does not impose a significant burden on small manufacturers.

C. Executive Order 13132 (Federalism)

NHTSA has examined today's rule pursuant to E.O. 13132 (64 FR 43255, Aug. 10, 1999) and concluded that no additional consultation with states, ( print page 66632) local governments, or their representatives is mandated beyond the rulemaking process. The agency has determined that the rulemaking would not have sufficient federalism implications to warrant consultation with state and local officials or the preparation of a federalism summary impact statement. The rule would apply to manufacturers of motor vehicles and motor vehicle equipment and would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Thus, E.O. 13132 is not implicated and consultation with state and local officials is not required.

D. National Environmental Policy Act

NHTSA has analyzed this rule for the purposes of the National Environmental Policy Act. The agency has determined that the implementation of this action will not have any significant impact on the quality of the human environment.

E. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. NHTSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule does not meet the criteria in 5 U.S.C. 804(2) to be considered a major rule.

F. Paperwork Reduction Act

Under the procedures established by the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), federal agencies must obtain approval from the OMB for each collection of information they conduct, sponsor, or require through regulations. A person is not required to respond to a collection of information by a federal agency unless the collection displays a valid OMB clearance number. In compliance with these requirements, NHTSA is submitting an information collection requestion (ICR) to OMB for modifications to a currently approved information collection titled “Record Retention—49 CFR part 576” (OMB Control No. 2127-0042, Current Expiration Date: 4/30/2026).

The final rule amends 49 CFR part 576 to extend the time manufacturers must retain certain information, which is considered to be an information collection requirement, as that term is defined by the OMB in 5 CFR part 1320. NHTSA sought comment on this change in the NPRM published on May 15, 2019.^[5] NHTSA's responses to the comments are discussed in section III above. As discussed, NHTSA is adopting the proposal without modification.

In accordance with the requirements of the PRA, NHTSA is resubmitting the ICR for this final rule. While NHTSA has not made any substantial modifications to the ICR since publishing the NPRM, NHTSA has revised the estimates for the total burden of this collection due to changes in the number of respondents since the NPRM was issued. NHTSA estimates the total burden of this information collection to be 40,225 hours and $0, which is the same burden estimate provided for the currently approved information collection. NHTSA does not believe the modification will increase burden to manufacturers. However, this estimate is higher than what we estimated in the May 15, 2019 NPRM, in which we as estimated that the burden would be 40,020 hours and $0. The adjustment is a result of an increase in the estimated number of the manufacturers required to maintain the records (an increase of five manufacturers each incurring an estimated 40 burden hours each year and an additional five manufacturers incurring an estimated 1 burden hour each year). NHTSA continues to estimate that there are no additional costs associated with this information collection.

In compliance with the requirement at 5 CFR 1320.9(g), NHTSA is providing the following information to potential respondents to the information collections for part 576—Record Retention:

Paperwork Reduction Act Statement: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2127-0042. The information collected is necessary to increase the effectiveness of NHTSA's investigations into potential safety related defects. The records that are required to be retained per 49 CFR part 576 are used to promptly identify potential safety-related defects in motor vehicles and motor vehicle equipment in the United States. When a trend in incidents arising from a potentially safety-related defect is discovered, NHTSA relies on this information, along with other agency data, to determine whether or not to open a formal defect investigation (as authorized by Title 49 U.S.C. Chapter 301—Motor Vehicle Safety). The record retention requirements are mandatory and NHTSA estimates that the annual burden associated with these record retention requirements is approximately 40 hours per manufacturer for vehicle and equipment manufacturers and 1 hour per manufacturer for record retention for death reports. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, National Highway Traffic Safety Administration, 1200 New Jersey Ave. SE, Room W45-205, Washington, DC 20590.

G. National Technology Transfer and Advancement Act

Under the National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” The amendment in today's final rule extends the time manufacturers retain records, and does not involve any voluntary consensus standards as it relates to NHTSA or this rulemaking.

H. Executive Order 12988 (Civil Justice Reform)

With respect to the review of the promulgation of a new regulation, section 3(b) of E.O. 12988, “Civil Justice Reform” (61 FR 4729, Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect; (2) clearly specifies the effect on existing federal law or regulation including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA has considered these issues and determined ( print page 66633) that this rule does not have any retroactive or preemptive effect. The rule only applies to documents in manufacturers' possession at the time the rule goes into effect and documents generated or acquired by manufacturers in the future. NHTSA notes further that there is no requirement associated with this rule that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

I. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This rule would not result in expenditures by state, local, or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually (adjusted for inflation with base year of 1995).

J. Executive Order 13211

E.O. 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) is determined to be economically significant as defined under E.O. 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. This rulemaking is not subject to E.O. 13211.

K. Regulation Identifier Number

The DOT assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 576

• Motor vehicle safety
• Tires
• Reporting and recordkeeping requirements

For the reasons discussed in the preamble, NHTSA amends 49 CFR part 576 as follows:

PART 576—RECORD RETENTION

1. The authority citation for part 576 is revised to read as follows:

Authority: 49 U.S.C. 322(a), 30117, 30120(g), 30141-30147; delegation of authority at 49 CFR 1.95.

2. Amend § 576.5 to revise paragraph (a) to read as follows:

§ 576.5

Basic requirements.

(a) Each manufacturer of motor vehicles, child restraint systems, and tires shall retain, as specified in § 576.7 of this part, all records described in § 576.6 of this part for a period of 10 calendar years from the date on which they were generated or acquired by the manufacturer.

* * * * *

Issued in Washington, DC, under authority delegated in 49 CFR 1.95 and 501.5.

Sophie Shulman,

Deputy Administrator.

Footnotes

1.  84 FR 21741.

2.  84 FR 21742.

3.   Id. (citing Federal Railroad Administration, Federal Motor Carrier Safety Administration, Consumer Product Safety Commission, and Environmental Protection Agency requirements).

4.  The average age of the U.S. light vehicle fleet was 12.6 years in 2024. See Average Age of Vehicles in the US Continues to Rise: 12.6 Years in 2024, According to S&P Mobility (May 22. 2024), available https://www.spglobal.com/​mobility/​en/​research-analysis/​average-age-vehicles-united-states-2024.html (last visited June 13, 2024).

5.  84 FR 21741.