NHTSA Enforcement Guidance Bulletin 2016-01; Guidance on Submission and Treatment of Manufacturer Communications to Dealers, Owners, or Purchasers About a Defect or Noncompliance |
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Paul A. Hemmersbaugh
National Highway Traffic Safety Administration
25 March 2016
[Federal Register Volume 81, Number 58 (Friday, March 25, 2016)]
[Notices]
[Pages 16270-16275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-06759]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2016-0039]
NHTSA Enforcement Guidance Bulletin 2016-01; Guidance on
Submission and Treatment of Manufacturer Communications to Dealers,
Owners, or Purchasers About a Defect or Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Notice.
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SUMMARY: The National Highway Traffic Safety Administration (NHTSA) is
issuing this notice to make manufacturers aware of the statutory
requirement to index their communications to dealers, owners, or
purchasers about a defect or noncompliance, and to provide
recommendations for complying with the index requirement. Additionally,
a change in the law requires NHTSA to publicly post all such
communications on its Web site and it is therefore providing notice of
its intention to do so. NHTSA will also publicly post on its Web site
the manufacturers' indexes to their communications as they are
received.
FOR FURTHER INFORMATION CONTACT: For legal issues: Kerry Kolodziej,
Office of the Chief Counsel, NCC-100, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone: 202-366-5263).
For submission of documents pursuant to 49 CFR 579.5: tsb@dot.gov.
For submission of documents pursuant to 49 CFR 573.6(c)(10):
Recalls Portal Help Desk, 1-888-719-9220; recalls.helpdesk@dot.gov.
SUPPLEMENTARY INFORMATION: The National Highway Traffic Safety
Administration (NHTSA or Agency) is issuing this notice of its intent
to enforce and implement the requirements of 49 U.S.C. 30166(f), as
amended by the Moving Ahead for Progress in the 21st Century Act (MAP-
21).
I. Legal and Policy Background
A. Manufacturers Are Required To Submit Copies to NHTSA of
Communications to Their Dealers, Owners, or Purchasers About a Defect
or Noncompliance
The National Traffic and Motor Vehicle Safety Act (Safety Act), as
amended, requires motor vehicle and
[[Page 16271]]
motor vehicle equipment manufacturers to provide NHTSA with copies of
communications they send to their dealers, owners, or purchasers.
Specifically, the Safety Act requires manufacturers to submit ``a true
or representative copy of each communication to the manufacturer's
dealers or to owners or purchasers of a motor vehicle or replacement
equipment produced by the manufacturer about a defect or noncompliance
with a motor vehicle safety standard prescribed under this chapter in a
vehicle or equipment that is sold or serviced.'' 49 U.S.C. 30166(f).
This is a long-standing requirement. See Motor Vehicle and Schoolbus
Safety Amendments of 1974, Public Law 93-492, 158(a)(1), 88 Stat. 1470,
1475 (1974).
1. Scope of Submission Requirement
The requirement for manufacturers to submit copies of their
communications to the Agency is broad and requires not only submission
of manufacturers' communications to dealers,\1\ owners, or purchasers
about vehicle and equipment recalls, but all communications ``about a
defect or noncompliance.'' 49 U.S.C. 30166(f)(1). With regard to
defects, the statutory submission requirement is not limited to
communications about safety-related defects. ``Defect'' is a
statutorily defined term meaning ``any defect in performance,
construction, a component, or material of a motor vehicle or motor
vehicle equipment.'' 49 U.S.C. 30102(a)(2). The plain language of the
provision requiring submission of copies of manufacturer communications
to the Agency does not condition use of the word ``defect'' to ``defect
related to motor vehicle safety,'' as is the case with other provisions
of the Safety Act. Compare 49 U.S.C. 30166(f), with 49 U.S.C.
30112(a)(3), 30118(a).
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\1\ The Safety Act defines ``dealer'' as ``a person selling and
distributing new motor vehicles or motor vehicle equipment primarily
to purchasers that in good faith purchase the vehicles or equipment
other the for resale.'' 49 U.S.C. 30102(a)(1). Therefore the
requirement to submit communications to the Agency captures
communications including both those between a motor vehicle
manufacturer and its dealers and equipment suppliers and their motor
vehicle manufacturer customers. See 49 CFR 579.5.
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Moreover, the Agency has long interpreted the requirement that
manufacturers submit copies of their communications to dealers, owners,
or purchasers as capturing all defect-related communications. See 49
CFR 579.5. In 1975, the Agency explained that the statute
``specifically authorizes the agency to require the submission'' of
communications about a defect, whether or not safety related. Proposed
Amendment, 49 FR 43227, 43228 (Sept. 19, 1975). The Agency explained
that this was important because ``[i]t is the responsibility of the
NHTSA, not the manufacturers, to make a final determination as to
whether or not a given defect is safety-related.'' Id. In 1978, the
Agency reiterated that the law ``specifically grants the agency [ ]
authority'' to collect all communications about a defect and rejected
the call from some commenters to limit the submissions to only
manufacturer communications about ``safety-related defects.'' Final
Rule, 43 FR 60165, 60168-69 (Dec. 28, 1978).
2. Implementing Regulations
NHTSA implements the statutory requirement that manufacturers
submit representative copies of their communications to dealers,
owners, or purchasers through two regulations: One specifically
addressing recall communications, 49 CFR 573.6(c)(10), and the other
addressing manufacturer communications more broadly, 49 CFR 579.5.
Many communications about a defect or noncompliance are
communications manufacturers make to their dealers, owners, or
purchasers about recalls. Some examples of these communications are
letters to dealers and vehicle owners informing them about a recall and
service bulletins (also known as technical service bulletins or TSBs)
that provide repair instructions for trained technicians performing the
recall remedy. NHTSA requires manufacturers to submit a representative
copy to NHTSA of recall communications ``not later than 5 days after
they are initially sent to manufacturers, distributors, dealers, or
purchasers.'' 49 CFR 573.6(c)(10). This applies to ``all notices,
bulletins, and other communications that relate directly to the defect
or noncompliance [that is the subject of a recall] and are sent to more
than one manufacturer, distributor, dealer or purchaser.'' Id.
The second regulation that implements the requirement for
manufacturers to submit communications about a defect or noncompliance
to the Agency is 49 CFR 579.5. That requires manufacturers to submit
``a copy of all notices, bulletins, and other communications (including
those transmitted by computer, telefax, or other electronic means and
including warranty and policy extension communiqu[eacute]s and product
improvement bulletins) other than those required to be submitted
pursuant to Sec. 573.6(c)(10) of this chapter, sent to more than one
manufacturer, distributor, dealer, lessor, lessee, owner, or purchaser,
in the United States, regarding any defect in its vehicles or items of
equipment (including any failure or malfunction beyond normal
deterioration in use, or any failure of performance, or any flaw or
unintended deviation from design specifications), whether or not such
defect is safety-related.'' 49 CFR 579.5(a). It also requires that
``[e]ach manufacturer shall furnish to NHTSA a copy of each
communication relating to a customer satisfaction campaign, consumer
advisory, recall, or other safety activity involving the repair or
replacement of motor vehicles or equipment, that the manufacturer
issued to, or made available to, more than one dealer, distributor,
lessor, lessee, other manufacturer, owner, or purchaser, in the United
States.'' 49 CFR 579.5(b). Manufacturer communications required by 49
CFR 579.5 are due to the Agency ``not later than five working days
after the end of the month'' in which they were issued. 49 CFR
579.5(d).
B. NHTSA's Current Treatment of Manufacturer Communications Submitted
to the Agency
It is important that manufacturers fully comply with the
requirement to submit copies of communications to their dealers,
owners, or purchasers about a defect or noncompliance so that the
Agency can effectively carry out its mission. Among other things, the
Agency reviews these communications to evaluate whether a safety issue
is involved, to engage in proactive communications with manufacturers
where there may be a misunderstanding or misidentification of the risk
of a particular issue that a manufacturer has decided to control and
remedy via a field action that is less than a recall, and to ensure
that recalls are carried out effectively.
NHTSA posts a great deal of information on its Web site,
www.safercar.gov, including copies of many manufacturer communications.
NHTSA's Web site has a search tool that allows a user to search for
available documents and information by make, model, and model year of a
vehicle, or by brand name and other identifying information for motor
vehicle equipment.\2\ When a user performs a search, NHTSA's Web site
currently displays available documents and information in four
categories: (1) Recalls, (2) Defect Investigations, (3)
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Complaints, and (4) Service Bulletins.\3\ NHTSA plans to rename the
``Service Bulletins'' category as ``Manufacturer Communications'' to
more fully reflect the available content. Each of these four categories
except ``Complaints,'' which are complaints submitted to the Agency
primarily by vehicle owners, may contain copies of manufacturer
communications submitted to the Agency.
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\2\ The search tool is currently available at http://www-odi.nhtsa.dot.gov/owners/SearchSafetyIssues.
\3\ NHTSA presently provides summary information, but does not
post copies of service bulletins under the currently named ``Service
Bulletin'' portion of its Web site.
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Where manufacturer communications involve a recall (i.e., concern a
safety-related defect or noncompliance), the Agency makes them
available along with other recall-related documents under the
``Recalls'' section of its Web site. Other manufacturer communications
that relate to an Agency defect investigation (i.e., concern a
potential safety-related defect) are also available under the ``Defect
Investigations'' section of the Web site. Additionally, NHTSA posts
manufacturer communications about customer satisfaction campaigns
(i.e., concerning defects that have not been determined to pose an
unreasonable risk to motor vehicle safety) on the currently named
``Service Bulletins'' portion of its Web site. NHTSA also posts
information about service bulletins (i.e., repair instructions for
trained technicians) for issues that have not been determined to be a
safety-related defect or noncompliance on its Web site under the
currently named ``Service Bulletin'' section of its Web site. NHTSA
summarizes service bulletins and makes the summary available, along
with an option to request a copy of the documents.\4\
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\4\ NHTSA's Web site does not currently include summary
information on all service bulletins generated by a manufacturer.
Service bulletins for safety recalls in general are not included,
and also service bulletins which do not pertain to a safety issue
may not be included in the summaries provided.
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II. New MAP-21 Requirements Regarding Manufacturer Communications
Submitted to the Agency
MAP-21 amended the Safety Act to require manufacturers to submit
additional information to the Agency along with copies of their
communications and to require the Agency to make that additional
information and the communications themselves available on the Agency's
Web site.
MAP-21 required manufacturers to accompany their submissions of
communications to the Agency with an index to each communication. MAP-
21, Public Law 112-141, Sec. 31303(a)(2), 126 Stat. 405, 764 (2012)
(codified at 49 U.S.C. 30166(f)(2)). Specifically, communications
manufacturers are required to submit to NHTSA under 49 U.S.C. 30166(f)
``shall be accompanied by an index to each communication, that--(A)
identifies the make, model, and model year of the affected vehicles;
[and] (B) includes a concise summary of the subject matter of the
communication.'' Id.
While NHTSA already proactively made a substantial number of
manufacturer communications available to the public on its Web site,
MAP-21 also changed the law to make it mandatory for the Agency to post
all manufacturer communications to dealers, owners, or purchasers about
a defect or noncompliance on its Web site. See 49 U.S.C. 30166(f)(1).
Additionally, NHTSA must post the manufacturers' indexes to their
communications on its Web site in a searchable format. 49 U.S.C.
30166(f)(2).
To implement these changes in the law, NHTSA is providing guidance
to manufacturers on the index requirement. This guidance is warranted
because manufacturers have not been submitting compliant indexes to the
Agency since the MAP-21 changes became effective on October 1, 2012.
See MAP-21, Public Law 112-141, Sec. 3, 126 Stat. 405, 413 (2012). In
addition to putting manufacturers on notice of this index requirement
and the Agency's intention to enforce it, providing guidance will also
help to ensure consistency in the format and content of manufacturer
indexes, thereby enabling the Agency to readily make the indexes
publicly available in a searchable format on its Web site.
NHTSA is also providing notice of its intention to publicly post
all manufacturer communications submitted to the Agency pursuant to 49
U.S.C. 30166(f) on its Web site. MAP-21 requires NHTSA to post all
manufacturer communications to dealers, owners, or purchasers about a
defect or noncompliance. Prior to MAP-21, the Agency did not post
certain manufacturer communications (specifically, certain service
bulletins) on its Web site, which some manufacturers claimed to be
copyrighted documents. Congress in MAP-21's explicit requirement that
the Agency post ``each communication to the manufacturer's dealers or
to owners'' about a defect or noncompliance, has now made clear that
copyright law is not a restriction on NHTSA action.
III. Guidance Regarding Index Requirement
The law now requires manufacturers to submit to NHTSA copies of
their communications to dealers, owners, or purchasers about a defect
or noncompliance and requires that such communications ``shall be
accompanied by an index to each communication.'' 49 U.S.C. 30166(f).
The index must identify the make, model, and model year of the affected
vehicles and include a concise summary of the subject matter of the
communication. 49 U.S.C. 30166(f)(2). This requirement has been in
effect since October 1, 2012. See MAP-21, Public Law 112-141, 3, 126
Stat. 405, 413 (2012).
Most manufacturers comply with the long-standing requirement to
submit copies to the Agency of their communications to dealers, owners,
or purchasers about a defect or noncompliance.\5\ However,
manufacturers have not complied with the change in law requiring them
to accompany their communications to the Agency with indexes to those
communications.
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\5\ Where manufacturers have failed to comply with this
requirement, the Agency has taken enforcement action. See August 28,
2015 Consent Order, In re: AQ15-001, Triumph Motorcycles (America),
Ltd.; July 8, 2015 Consent Order, In re: AQ14-001, Forest River,
Inc.; July 8, 2015 Consent Order, In re: TQ14-003, Spartan Motors,
Inc. The Agency has also has and continues to take steps to educate
the industry about the communication submission requirement so that
the Agency receives this critical information.
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We are providing this guidance to make manufacturers aware of their
legal obligation to index their communications. The Agency expects all
manufacturers to expeditiously come into full compliance with the law
and will take additional action to enforce the index requirement as
necessary. The index requirement is subject to daily civil penalties.
See 49 U.S.C. 30165(a)(3).
We are also providing this guidance to communicate to manufacturers
the content requirements for the index. We are providing
recommendations for preparing and submitting the index to help ensure
consistency across manufacturers and to enable the Agency to readily
make the indexes publicly available in a searchable format on its Web
site.
A. Which manufacturers must submit indexed communications to the
Agency?
Every manufacturer of motor vehicles or motor vehicle equipment is
responsible both for submitting copies of communications to dealers,
owners, or purchasers and to provide an
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accompanying index of those communications to the Agency. 49 U.S.C.
30166(f). The Safety Act defines ``manufacturer'' broadly to mean ``a
person--(A) manufacturing or assembling motor vehicles or motor vehicle
equipment; or (B) importing motor vehicles or motor vehicle equipment
for resale.'' 49 U.S.C. 30102(a)(5).
B. What types of communications must a manufacturer index going
forward?
As discussed in this notice, NHTSA implemented the requirement to
submit copies of communications to dealers, owners, or purchasers about
a defect or noncompliance through regulations at 49 CFR 573.6(c)(10)
and 49 CFR 579.5. Therefore, a manufacturer must accompany its future
submissions of all communications pursuant to these provisions with an
index that meets the statutory requirements.
C. How does a manufacturer come into compliance with the index
requirement for prior submissions?
The index requirement became effective as of October 1, 2012. See
MAP-21, Public Law 112-141, 3, 126 Stat. 405, 413 (2012). No
manufacturer to date has submitted compliant indexes. Some
manufacturers have submitted incomplete indexes to their communications
that do not satisfy the statutory requirements. To come into full
compliance with the law, a manufacturer must submit complete indexes to
the communications it previously submitted to the Agency pursuant to 49
CFR 579.5 between October 1, 2012 and the present, along with copies of
all communications listed in the index.
A compliant submission requires both a complete index and copies of
the indexed communications. See 49 U.S.C. 30166(f). A manufacturer may
not supplement its earlier submission of communications pursuant to 49
CFR 579.5 by providing an index only. While we understand that this may
necessitate, in many cases, manufacturers to resubmit a large quantity
of communications to the Agency, this is what the law requires. The
Agency must receive a full and complete submission of communications
accompanied by an index so that it may fulfill its statutory obligation
to make the communications and index available on its Web site.\6\
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\6\ An index must enable a user to locate the indexed
communications. NHTSA will provide each communication with a unique
identifier, linked to the manufacturer-provided index. NHTSA will
provide instructions on its Web site for using the unique identifier
to search for and retrieve the communication.
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While a manufacturer must accompany future submissions of
communications pursuant to 49 CFR 573.6(c)(10) (i.e., recall
communications) with an index, we are exercising our enforcement
discretion to deem prior submissions of these communications compliant
with this requirement. These are recall communications, such as letters
to owners or dealers informing them of the recall and service bulletins
regarding the recall repair. Manufacturers need not resubmit copies of
recall communications or an accompanying index.\7\
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\7\ This is not intended to limit the Agency's authority to make
future requests for documents or information. See 49 CFR 30166(b),
(e), (g).
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The Agency has long had a practice of posting recall communications
on its Web site along with a great deal of information about the
recall. As safety critical information, the Agency wants to avoid any
disruption that could occur by making changes to the recall portion of
its Web site. Moreover, changes are unnecessary. Recall communications
are already indexed and available on the Agency's Web site. Recall
communications are readily accessible through a searchable interface
that is familiar to public users of the Agency's Web site.
D. When are indexed communications due to the Agency?
The law requires that communications submitted to the Agency
``shall be accompanied by an index.'' 49 U.S.C. 30166(f)(2). Therefore,
manufacturers should submit an index at the same time as they submit
communications to the Agency. As discussed above, 49 CFR 573.6(c)(10)
requires submission of recall communications ``not later than 5 days
after they are initially sent to manufacturers, distributors, dealers,
or purchasers.'' Manufacturer communications required by 49 CFR 579.5
are due to the Agency ``not later than five working days after the end
of the month'' in which they were issued. 49 CFR 579.5(d).
1. Current and Prospective Submissions of Communications
The Agency expects manufacturers to make a good faith effort to
expeditiously comply with the requirement to provide an index to
accompany the communications they submit to the Agency. However, the
Agency recognizes that manufacturers will need to educate staff and may
need to change internal policies and procedures to begin complying with
this requirement. While the Agency is not excusing noncompliance with
the law, the Agency recognizes that the entire industry has been out of
compliance with the index requirement and intends to exercise its
enforcement discretion to allow manufacturers a reasonable period of
time from the date of this notice to come into compliance with the
index requirement on a going forward basis. However, manufacturers
should not delay providing communications to the Agency.
2. Retroactive Resubmissions of Indexed Communications
The Agency will not excuse manufacturers from providing indexes for
communications submitted to the Agency pursuant to 49 CFR 579.5 on or
after October 1, 2012. For any communications previously submitted to
the Agency pursuant to 49 CFR 579.5 that were not accompanied by a
fully compliant index at the time of submission, manufacturers must
submit indexed communications to the Agency. As discussed above, this
requires an index along with resubmission of all communications listed
in the index. This is necessary to allow the Agency to fulfill its
statutory obligations.
The Agency intends to exercise enforcement discretion to allow
manufacturers a reasonable period of time to resubmit indexed
communications required by 49 CFR 579.5. The Agency recognizes that, in
many cases, the volume of communications submitted to the Agency since
October 1, 2012 is significant. The Agency will take the volume of
communications into account in considering what constitutes a
reasonable period of time for a given manufacturer. In general, we
expect that a manufacturer will resubmit indexed communications on a
rolling basis until it achieves full compliance.
In sum, the Agency is not specifying a deadline for compliance with
the index requirement before it expects to take enforcement action. All
manufacturers must begin immediately making a reasonable good faith
effort to take steps to comply expeditiously for both retroactive and
future submissions. The Agency will take any such actions into account
in evaluating whether a given manufacturer came into compliance with
the law within a reasonable period of time.
E. What are the penalties for not complying with the index requirement?
Indexes are required by 49 U.S.C. 30166(f), therefore, failure to
provide indexes, or failure to provide timely or complete indexes, is
subject to civil
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penalties under current law of up to $21,000 per violation per day and
up to a maximum penalty of $105 million for a related series of daily
violations. 49 U.S.C. 30165(a)(3); see Civil Penalty Factors, 81 FR
10520 (Mar. 1, 2016) (issuing final rule).
F. What information must the index contain?
At a minimum, an index must identify the make, model, and model
year of the affected vehicles and must include a concise summary of the
subject matter of the communication. These are statutory requirements.
49 U.S.C. 30166(f)(2). This is mandatory information when applicable.
However, the Agency recognizes that for communications submitted by
motor vehicle equipment manufacturers, in many cases, there are no
specific affected vehicles. This is also true for a limited number of
generalized communications by motor vehicle manufacturers. In such
cases, the manufacturer should include other identifying information
for the affected motor vehicles or motor vehicle equipment in lieu of
make, model, and model year information for specific affected
vehicles.\8\
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\8\ This does not excuse a motor vehicle manufacturer from
providing make, model, and model year information for affected
vehicles when that information is reasonably available. For example,
it is not sufficient for a motor vehicle manufacturer to include
vehicle platform information in its index instead of make and model.
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To help ensure consistency across manufacturers, the Agency is also
providing recommendations on the specific format and content of the
indexes. In addition to the recommendations provided in this notice,
the Agency may provide more detailed recommendations on a forthcoming
Web page at http://www-odi.nhtsa.dot.gov/mc/. The Agency will make
available a template index for download and will provide examples of
completed index entries on its Web site. The Agency encourages
manufacturers to continue to visit this Web page as the Agency may
refine its recommendations over time as it evaluates manufacturers'
index submissions. While we are providing guidance and recommendations
at this time, the Agency will evaluate the content and consistency of
index submissions across manufacturers to determine whether a future
rulemaking is warranted.
1. Recommended Format for Index
NHTSA strongly recommends that manufacturers submit their indexes
as word searchable electronic files. While the Agency is not requiring
use of any particular software, to ensure compatibility, the Agency
requests that manufacturers submit indexes as searchable Microsoft
Excel files.
The Agency recommends that a manufacturer list each communication
on a separate row in its index and include separate columns for each
item of discrete information included. For example, the index should
include separate columns for make, of the affected vehicles, model of
the affected vehicles, and model year of the affected vehicles. We
recommend including a separate row for each make, model, or model year
of vehicle affected by a single communication. In other words, a single
communication may populate multiple rows on an index. We also recommend
including a column for manufacturer communication identifier number, if
one is used.
The Agency's Web site and template index available for download
will provide more specific recommendations and information on the
Agency's preferred format for manufacturer indexes. See http://www-odi.nhtsa.dot.gov/mc/ (forthcoming).
2. Recommendations for Preparing the Concise Summary
At a minimum, NHTSA recommends that a concise summary of the
subject matter of a manufacturer's communication should identify the
defect or noncompliance, describe the effect of the defect or
noncompliance, and describe the purpose or type of the communication.
In many cases, simply repeating the subject line or title of a
communication will be insufficient. Likewise, a generic description
that does not actually summarize the communication or describes
multiple communications with minimal changes, such as ``service
bulletin number 123'' does not meet the statutory requirements. The
Agency will post examples of concise summaries on its Web site.
G. Recommended Method of Submitting the Indexed Communications to the
Agency
NHTSA requests that manufacturers submit their indexed
communications to the Agency electronically. Electronic submission will
best enable the Agency to make the manufacturer communications and
searchable index available to the public on the Internet as the law
requires.
As discussed above, manufacturers must index recall communications
that they submit to the Agency pursuant to 49 CFR 573.6(c)(10) and
communications that they submit pursuant to 49 CFR 579.5. Manufacturers
are required to submit recall communications through NHTSA's recalls
portal and should also submit their recall communication indexes
through the portal. See 49 CFR 573.9. For communications required by 49
CFR 579.5, NHTSA strongly recommends that manufacturers submit their
indexed communications electronically to tsb@dot.gov. See 49 CFR
579.6(a).
We note that some manufacturers have had a past practice of
submitting multiple communications under 49 CFR 579.5 in a consolidated
format, such as a single large .pdf file. We strongly recommend that
manufacturers discontinue this practice, in order to ensure that each
communication listed in the manufacturer's index is a readily
identifiable separate document. The Agency would prefer to receive each
communication as a separate .pdf file.
IV. Notice of Intention to Publicly Post All Manufacturer
Communications About a Defect or Noncompliance on NHTSA's Web Site
NHTSA has reevaluated the information that the law permits it to
make publicly available on its Web site in light of the changes made by
MAP-21. As a result, NHTSA is providing this notice of its intent to
publicly post all manufacturer communications submitted to it pursuant
to 49 U.S.C. 30166(f).
The law now affirmatively requires NHTSA to ``make available on a
publicly accessible Internet Web site'' copies of communications to
manufacturers' dealers, owners, or purchasers about a defect or
noncompliance that manufacturers submit to the Agency.
Prior to enactment of MAP-21, the Agency did not publicly post
copies of all service bulletins that it received.\9\ Some manufacturers
copyright their service bulletins. Service bulletins are a
manufacturer's repair instructions, and repair shops or other
interested individuals may purchase them from a commercial source.
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\9\ Although the law also limits the Agency's ability to
disclose confidential information, 49 U.S.C. 30167, manufacturers do
not treat these documents as confidential and, in the case of
service bulletins, make them available to the public through
commercial providers. See 49 CFR part 512.
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Pursuant to the fair use limitation on copyright, to date NHTSA has
posted on its Web site copies of service bulletins for recall repairs
and service bulletins related to its defect investigations. See 17
U.S.C. 107; see also 49 U.S.C. 30167(b). NHTSA also has made a paper
copy of other service bulletins available
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to the public pursuant to the library provision of copyright law. See
17 U.S.C. 108.
Congress necessarily made the decision in enacting MAP-21, that
copyright law does not restrict NHTSA from publicly posting copies of
all manufacturer communications received by the Agency pursuant to 49
U.S.C. 30166(f) on its Web site. Indeed, 49 U.S.C. 30166(f) expressly
requires the Agency to do so.
MAP-21 trumps the limited waiver of sovereign immunity for
copyright infringement claims. See 28 U.S.C. 1498(b). Congress could
not have intended to allow manufacturers to assert copyright
infringement against the federal government based on the Agency's
publication of service bulletins and other manufacturer communications
on its Web site in light of the express statutory requirement that the
Agency do so. See Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 143 (2000) (``The classic judicial task of
reconciling many laws enacted over time, and getting them to `make
sense' in combination, necessarily assumes that the implications of a
statute may be altered by the implications of a later statute. This is
particularly so where the scope of the earlier statute is broad but the
subsequent statutes more specifically address the topic at hand . . . .
[A] specific policy embodied in a later federal statute should control
our construction of the earlier statute, even though it has not been
expressly amended.'') (internal quotation marks, brackets, and
citations omitted).
Because the law directs the Agency to make manufacturer
communications publicly available on its Web site, the Agency is acting
to effectuate the law. The Agency will post on its Web site those
manufacturer communications submitted to the Agency on or after the
October 1, 2012 effective date of MAP-21 that are not already available
on the Agency's Web site. Going forward, the Agency intends to post to
its public Web site all manufacturer communications submitted pursuant
to 49 U.S.C. 30166(f), including documents submitted pursuant to 49 CFR
573.6(c)(10) or 579.5. The Agency will also post manufacturer indexes
for communications submitted to the Agency on or after October 1, 2012
on a rolling basis as compliant indexes are received. The Agency
intends to make manufacturer indexes available in a searchable format.
Applicability/Legal Statement: This Enforcement Guidance Bulletin
sets forth NHTSA's current interpretation and thinking on this topic
and guiding principles and best practices to be utilized in complying
with the legal requirements of 49 U.S.C. 30166(f). This Bulletin is not
a final agency action and is intended as guidance only. This Bulletin
is not intended, nor can it be relied upon, to create any rights
enforceable by any party against NHTSA, the Department of
Transportation, or the United States. Moreover, these recommended
practices to not establish any defense to any violations of the
statutes and regulations that NHTSA administers. This Bulletin may be
revised without notice to reflect changes in NHTSA's evaluation and
analysis, or to clarify and update text.
Authority: 49 U.S.C. 30101, et seq.; 49 U.S.C. 30165(a)(3),
30166(f); delegations of authority at 49 CFR 1.95(a), 501.2(a)(1),
501.5.
Issued on: March 21, 2016.
Paul A. Hemmersbaugh,
Chief Counsel.
[FR Doc. 2016-06759 Filed 3-24-16; 8:45 am]
BILLING CODE 4910-59-P