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Record Retention Requirement Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Sophie Shulman Date: 16 August 2024 Subjects: American Government  , Safety
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[Federal Register Volume 89, Number 159 (Friday, August 16, 2024)]
[Rules and Regulations]
[Pages 66629-66633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18112]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 576
[Docket No. NHTSA-2019-0035]
RIN 2127-AL81
Record Retention Requirement
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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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: (202) 366-2992).
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
[[Page 66630]]
safety.'' 49 CFR 576.6; see 49 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.
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\1\ 84 FR 21741.
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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.
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\2\ 84 FR 21742.
\3\ Id. (citing Federal Railroad Administration, Federal Motor
Carrier Safety Administration, Consumer Product Safety Commission,
and Environmental Protection Agency requirements).
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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
[[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. See 49 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.
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\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).
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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,
[[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.
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\5\ 84 FR 21741.
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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
[[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
0
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.
0
2. Amend Sec. 576.5 to revise paragraph (a) to read as follows:
Sec. 576.5 Basic requirements.
(a) Each manufacturer of motor vehicles, child restraint systems,
and tires shall retain, as specified in Sec. 576.7 of this part, all
records described in Sec. 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.
[FR Doc. 2024-18112 Filed 8-15-24; 8:45 am]
BILLING CODE 4910-59-P