NHTSA Publishes Updated Proposed Rule on Manufacturer Recall Notifications

On January 10, NHTSA published a Supplemental Notice of Proposed Rulemaking (SNPRM) detailing its plan to update 49 C.F.R. Part 577, the regulations covering required recall notifications. This proposal stems from the Fixing America's Surface Transportation (FAST) Act’s mandate that NHTSA amend its regulations to require recall notifications be sent to vehicle and equipment owners and purchasers by electronic means, in addition to first-class mail. The SNPRM supplements a 2016 proposed rule, such that anticipated changes may have fallen off many manufacturers’ radars.

Our Key Takeaways From the SNPRM Are:

• Requirements: NHTSA plans to update Part 577 regulations to require manufacturers to issue owner and purchaser recall notifications by electronic means, in addition to first-class mail, via a two-tiered approach. First, manufacturers must make “all reasonable efforts to send electronic notification” to the specific owner or purchaser. Second, if the notification cannot be sent directly, it “must be issued by other electronic means reasonably calculated to reach the owners and purchasers who could not be reached through individual contact information” (for example, public broadcasts or social media campaigns).
• Content: While electronic notifications don’t need to contain all the content required for traditional letter notifications, the notification “must not be inconsistent with” the required written recall notice. NHTSA has also specifically asked manufacturers to: (a) include, where practical, a hyperlink to a representative copy of written notices and instructions that explain how to determine whether the owner or purchaser’s product is impacted, and (b) direct the owner or purchaser to either NHTSA’s or the manufacturer’s VIN search tool.
• Scope: The forthcoming “electronic notification mandate” will apply, at a minimum, to all recall notifications (both interim and final). If NHTSA determines that follow-up notifications are necessary, manufacturers will be required to issue electronic notifications in conformance with the new rules, as well.
• Means of Communication: Manufacturers will have flexibility to choose the electronic “means” by which they notify owners and purchasers, including through email, text, radio, television, in-vehicle notifications, social media or targeted online campaigns, phone calls (including automated), or “other similar electronic means.” However, manufacturers will be required to submit general “electronic notification plans” to NHTSA by the to-be-determined effective date of the final rule, which describe the manufacturer’s anticipated “means of electronic notification” and “how the manufacturer expects to approach the selection of electronic means.” Manufacturers will be expected to notify NHTSA ten days before issuing an electronic notification that will deviate from their submitted notification plan, and to update their plan at least every 5 years.
• Multiple Manufacturers: The agency will not allow “multiple manufacturers involved in the same recall to issue electronic recall notifications on behalf of one another to collectively satisfy their electronic-notification obligations.”

The SPRM Also Proposes the Below Anticipated Changes To Part 577 Requirements on Top of the Electronic Notification Revisions:

• The required “SAFETY RECALL NOTICE” and “IMPORTANT SAFETY RECALL” language for written recall notices must be changed to “URGENT SAFETY RECALL” in both locations.
• The language in § 577.5 will be revised to refer to vehicles or equipment that “do not comply with” a Federal motor vehicle safety standard, as opposed to referring to products that “fail to conform” to a standard.
• Manufacturers should direct owners and purchasers to “http://www.nhtsa.gov” instead of “http://www.safercar.gov.”
• The office designation for NHTSA's Recall Management Division will be changed from “NVS-215” to “NEF-107.”

While the effective date of the final rule remains undetermined, manufacturers should begin thinking about updating their recall notification plans to anticipate these new changes and begin developing an “electronic notification plan” that is workable for their business model and products. NHTSA plans to require compliance with the electronic notification requirements for recalls filed one year or later after the final rule’s publication (regardless of the age of the vehicle or equipment). All other requirements (including submission of the plan) will become required on the final rule’s effective date.

The full text of the SNPRM can be found here. Interested parties can submit comments by March 11.