Interpretation ID: 576intp.etl

Ms. Susan A. Longacre
President
Longacre and Associates, Inc.
8401 Corporate Drive, Suite 425
Landover, MD 20785

Dear Ms. Longacre:

This is in response to your letter to this office requesting certain information concerning the National Highway Traffic Safety Administration ("NHTSA") regulation on the subject of "record retention," designated as 49 CFR Part 576. Your original request was addressed to Ms. Heidi Coleman of this office under the Freedom of Information Act ("FOIA"). As Ms. Enid Rubenstein of my staff previously explained to you by telephone, we are treating your letter as a request for interpretation rather than a FOIA request because your questions ask the agency to interpret the meaning of certain provisions of the regulation, as well to provide you with copies of documents. I am answering your questions in the order that you presented them; and have also enclosed a copy of the full text of 49 CFR Part 576 for your information.

Question 1. Have there ever been any "letters of interpretation" or requests for interpretation sent to NHTSA related to this part?

We were able to locate five letters in which NHTSA's Chief Counsel has interpreted 49 CFR Part 576. I have enclosed copies of these letters with this response. For your information, NHTSA's interpretations are also available in electronic form in a searchable database located on the World Wide Web at: http://www.nhtsa.dot.gov/cars/rules/interps/. For future reference, the agency's Technical Information Services office ("TIS") also has copies of all legal interpretations of NHTSA regulations. You can obtain copies of these interpretations from TIS in person at 400 Seventh Street, SW, Room 5110, Washington, D.C. 20590 between the hours of 9:30 a.m. and 4:00 p.m., Monday through Friday; and you may also request them in writing from TIS at the above address.

Question 2: Does this requirement pertain to only records that relate to FMVSS compliance?

The answer is no. The regulation requires retention of records that relate to possible defects related to motor vehicle safety as well as records that relate to noncompliance with Federal motor vehicle safety standards. Section 576.2 states that the purpose of the regulation is to preserve records that are needed "for the proper investigation, and adjudication or other disposition, of possible defects related to motor vehicle safety and instances of nonconformity to the motor vehicle safety standards and other regulations." [Emphasis added.]

Section 576.6 uses the inclusive term "malfunctions that relate to motor vehicle safety," rather than "noncompliance" or "defect related to safety" to describe the subject matter of the records that are covered by the regulation. Section 576.8, in turn, sets forth the types of "malfunctions" referred to in 576.6, and makes clear that these include defects that relate to safety, as well as noncompliances with safety standards:

. . . [M]alfunctions that may be related to motor vehicle safety include, with respect to a motor vehicle or item of motor vehicle equipment, any failure or malfunction beyond normal deterioration in use, or any failure of performance, or any flaw or unintended deviation from design specifications, that could in any reasonably foreseeable manner be a causative factor in, or aggravate, an accident or an injury to a person.

Question 3: The requirement refers to all records relating to "possible defects." Does that mean that all developmental, material specifications, etc. must also be maintained? If not, what records over and above those relating to FMVSS compliance are required to be maintained?

As stated above, in addition to records relating to noncompliance with Federal motor vehicle safety standards, Part 576 requires retention of records relating to possible defects related to motor vehicle safety. See 49 CFR 576.2. However, the regulation does not require a manufacturer to retain the "developmental, material specifications" that you refer to, for either type of malfunction (i.e., safety-related defect or noncompliance).

Neither Part 576 nor the preamble of any of the Federal Register notices surrounding its promulgation mention a requirement to retain documents relating to the design of the vehicle or to material or other specifications. The focus of the regulation is on records that either report or otherwise reflect the presence of a malfunction. Thus, 576.6 includes the following as records that a manufacturer must retain:

communications from vehicle users and memoranda of user complaints; reports and other documents . . . that are related to work performed under, or claims made under, warranties; service reports or similar documents . . . from dealers or manufacturer's field personnel; and any lists, compilations, analyses, or discussions of such malfunctions contained in internal or external correspondence of the manufacturer . . ..

The preamble to NHTSA's first proposal to adopt Part 576 confirms that the focus of the agency's interest in promulgating this regulation was to ensure that manufacturers would preserve records that reflected the existence of malfunctions, and did not extend to records about product development, design, or material specifications:

Typically, the manufacturer is the main recipient of complaints of malfunctions by the vehicle owner. Many reports of malfunctions are processed through channels for the administration of vehicle warranties by manufacturers and their dealers. Manufacturers' field service representatives may also serve as collection points for information of this nature. It is to be expected that manufacturers compile analyses and lists of malfunction reports, with a view toward product improvement, removal of design weaknesses, and of course the remedying of safety-related defects. Since some defects are not revealed as such until months or years after the vehicle's manufacture, a determination by NHTSA of the proper disposition of a possible defect . . . may be seriously hindered if manufacturers do not retain these records.

39 Fed. Reg. 30048 (Aug. 20, 1974).

In practice, manufacturers may retain other types of records that are outside the scope of Part 576. Although NHTSA may, and often does, make use of records such as those relating to design or material specifications when investigating possible safety-related defects or noncompliances, Part 576 does not require a manufacturer to retain them.

I hope this information is helpful. If you have any further questions concerning Part 576, you may contact Eileen Leahy, an attorney on my staff, at the above address or at 202-366-5263.

Sincerely,
John Womack
Acting Chief Counsel
Enclosures (2): Set of 5 Interp Letters; Copy of Part 576
ref:576
d.2/5/98