[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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: [email protected].
    For submission of documents pursuant to 49 CFR 573.6(c)(10): 
Recalls Portal Help Desk, 1-888-719-9220; [email protected].

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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)

[[Page 16272]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 16273]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 16274]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 [email protected]. 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 16275]]

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