work be performed without charge shall not apply if a determination is made under subsection (g) of this section that the defect or failure to comply is de minimis, or if such motor vehicle or item of motor vehicle equipment was purchased by the first pur ufacturer) more than eight calendar years before the manufacturer receives notification from the Secretary, pursuant to paragraph (1) of subsection (g) of this section, of defect or failure to comply. "(h) IMMINENT Hazard.—(1) The Secretary may file an action against "(A) an imminently hazardous motor vehicle or item of motor vehicle equipment for seizure of such vehicle or equipment under paragraph (2) (B) of this subsection; and "(B) a manufacturer, distributor, or dealer of such motor vehicle or item of motor vehicle equipment. As used in this subsection, imminently "(B) In the case of an action under paragraph (1)(A) of this subsection, the motor vehicle or item of motor vehicle equipment may be proceeded against by process of libel for the seizure and condemnation of such product in any district court of the United States within the judicial district in which such motor vehicle or item of motor vehicle equipment is found. Proceedings and cases shall conform as nearly as possible to proceedings in rem in admiralty, "(C) An nction under paragraph (1)(B) of this subsection may be brought in the district court of the United States for the District of Columbia or in any judicial district in which any of the defendants is found, resides, or transacts business. Process may be served on such defendant in any judicial district in which such defendant resides or may be found. Subpenas requiring the attendance of witnesses in such an action may run into any other district. "(4) Notwithstanding any other provision of law, in any action under this subsection, the Secretary may direct attorneys employed by him to appear and represent him." Senate Debate-Section 157 Contains nothing helpful. Senate Committee Report-Section 157 Senate Report 93-150, Pages 17 and 18 Subsection (g) (2) of the proposed section 113, provides that any person who is aggrieved by the decision in the proceeding before the Secretary may appeal the decision upon filing of a petition for review in the United States Court of Appeals for the District of Columbia Circuit. The petition must be filed within 20 days after the Secretary's decision. In any such review, the factual findings of the Secretary shall be sustained if supported_by substantial evidence on the record considered as a whole. The Secretary is directed to file the record upon which his findings are based within 20 days of the date the petition for review is filed. The court shall expedite the disposition of such petition for review. There is no appeal on the Secretary's determination that a defect or failure to comply is or is not de minimus in its impact. The term "any person who is aggrieved by the decision" should be broadly interpreted and does not require specific injury to the individual himself. Rather, the individual can be a representative of consumers and be expressing their interests. The reason for this is quite clear: where a motor vehicle or item of motor vehicle equipment contains a safety related defect or failure to comply, the owner of such vehicle or equipment is not the only one who may be endangered. Passengers riding in that vehicle or other parties may be involved in an accident, the proximate cause of which was the defect or failure to comply. Imminent hazard (subsection (h)) This subsection relating to "imminent hazards" is modeled after a similar provision contained in the Consumer Product Safety Act enacted in 1972. Under this provision, the Secretary may file an action against an imminently hazardous motor vehicle or item of motor vehicle equipment for the seizure of such vehicle or equipment, and against the manufacturer, distributor or dealer of such motor vehicle or item of motor vehicle equipment. As used in this subsection, "imminent hazard" means a motor vehicle or item of motor vehicle equipment which presents immediate 18 and unreasonable risk of death, serious illness, or severe personal injury. The court in which such action is filed shall have jurisdiction to declare such motor vehicle or item of motor vehicle equipment to be imminently hazardous and in an action against such manufacturer, distributor or dealer or to grant such temporary or permanent relief as may be necessary to protect the public from such risks. In an action filed against an imminently hazardous motor vehicle or item of motor vehicle equipment, such a vehicle or equipment may be proceeded against by process of libel for the seizure and condemnation of such product in any district court of the United States within the judicial district in which such motor vehicle or item of motor vehicle equipment is found. Proceedings and cases shall conform as nearly as possible to proceedings in rem in admiralty. An action filed against a manufacturer, distributor, or dealer may be brought in the District Court of the United States for the District of Columbia or in any judicial district in which any of the defendants is found, resides, or transacts business. Process of such defendant may be served in any judicial district in which such defendants resides or may be found. Subpoenas requiring the attendance of witnesses in such action may run into any other district. Attorneys employed by the Secretary may appear and represent him in any such proceeding notwithstanding any other provision of law. The Secretary has complete control of the litigation through his own attorneys. The purpose of this provision is to provide an expedited proceeding where the public is presented with an immediate and unreasonable risk of death, serious illness, or severe personal injury due to a safety related defect or failure to comply with an applicable Motor Vehicle Safety Standard. In a case where the without invoking the hearing provisions of subsection (g) of this section, then the imminent hazard provision would not be necessary. However, if the manufacturer requests a hearing and the Secretary determines that an imminent hazard exists, he may immediately proceed to the district court under the provisions of this subsection. The manufacturer will still receive a due process consideration of his views and evidence in the district court and the public will still have the benefit of an expedited consideration. DEAR MR. CHAIRMAN: Your letter of February 21, 1973, requests our comments on S. 355, which is a bill to amend the National Traffic and Motor Vehicle Safety Act of 1966 to provide for remedies of defects without charge. The proposed section 113(g) (C) reads, in part, as follows (page 4, lines 4 thru 15): "If, following a determination under paragraph (1) of subsection (g) of this section, a manufacturer can establish to the satisfaction of the Secretary at a hearing structured to proceed as expeditiously as practicable that a failure to comply with an applicable motor vehicle safety standard is of such inconsequential nature that the purposes of this title and the public interest would not be served by requiring the applicable manufacturer to remedy such defect or failure to comply without charge, the Secretary may, upon publication of his reasons for such findings, exempt such manufacturer from the requirements of this subsection with respect to such failure." We suggest that the foregoing provision be clarified to more specifically define (1) the type of hearing to be conducted by the Secretary and (2) the meaning of the term "inconsequential nature." Sincerely yours, PAUL G. DEMBLING (For the Comptroller General of the United States.) As Introduced-Section 157 S. 355, January 12, 1973, Page 4 4 If, following a determination under paragraph (1) of sub- 8 comply with an applicable motor vehicle safety standard is 9 of such inconsequential nature that the purposes of this title 10 and the public interest would not be served by requiring the 11 12 applicable manufacturer to remedy such defect or failure to comply without charge, the Secretary may, upon publication 13 of his reasons for such findings, exempt such manufacturer 14 from the requirements of this subsection with respect to such 15 failure.". As Enacted-Section 158 “INFORMATION, DISCLOSURE, AND RECORDKEEPING “SEC. 158. (a) (1) Every manufacturer shall furnish to the Secretary a true or representative copy of all notices, bulletins, and other communications to the dealers of such manufacturer or to owners or purchasers of motor vehicle or replacement equipment produced by such manufacturer regarding any defect or failure to comply in such vehicle or equipment which is sold or serviced. (2)(A) Except as provided in subparagraph (B), the Secretary shall disclose to the public so much of any information which is obtained under this Act and which relates to a defect which relates to motor vehicle safety or to a failure to comply with an applicable Federal motor vehicle safety standard, as he determines will assist in carrying out the purposes of this part or as may be required by section 152. (B) Any information described in subparagraph (A) which contains or relates to a trade secret or other matter referred to in section 1905 of title 18, United States Code, shall be considered confidential for purposes of that section and shall not be disclosed; unless the Secretary determines that disclosure of such information is necessary to carry out the purposes of this title. shall be in addition to and not in lieu of the requirements of section 552 of title 5, United States Code. (b) Every manufacturer of motor vehicles or tires shall cause the establishment and maintenance of records of the name and address of the first purchaser of each motor vehicle and tire produced by such manufacturer. To the extent required by regulations of the Secretary, every manufacturer of motor vehicles or tires shall cause the establishment and maintenance of records of the name and address of the first purchaser of each item of replacement equipment other than a tire produced by such manufacturer. The Secretary may, by rule, specify the records to be established and maintained, and reasonable procedures to be followed by manufacturers in establishing and maintaining such records, including procedures to be followed by distributors and dealers to assist manufacturers to secure the information required by this subsection; except that the availability or not of such assistance shall not affect the obligation of manufacturers under this subsection. Such procedures shall be reasonable for the particular type of motor vehicle or tires for which they are prescribed, and shall provide reasonable assurance that customer lists of any dealer and distributor, and similar information, will not be made available to any person other than the dealer or distributor, except where necessary to carry out the purpose of this part. Conference Report-Section 158 House Report 93-1452, Pages 35 and 36 Senate bill INFORMATION, DISCLOSURE, AND RECORDKEEPING Section 3 of the Senate bill included provisions similar to section 113(d) of existing law and provided that every manufacturer of motor vehicles or tires would furnish to the Secretary a true or representative copy of all notices, bulletins, and other communications to the dealers of such manufacturer or to the purchasers of motor vehicles or motor vehicle equipment produced by such manufacturer regarding any defect in such vehicle or equipment which is sold or serviced. The section also required the Secretary to disclose so much of any information referred to under this subsection, the subsection relating to the defect or failure to comply, or section 112(a) of the Act as the Secretary determined would assist in carrying out the purposes of the Act. However, the Secretary would not disclose to the public any information which contained or related to a trade secret or other matter referred to in section 1905 of title 18, United States Code, unless he determined that it was necessary to carry out the purposes of the Act. Section 113 (d) of the Act, as amended by the Senate bill further required every manufacturer of motor vehicles or tires to maintain records of the names and addresses of the first purchaser of motor vehicles or tires produced by the manufacturer. The Secretary was empowered to establish, by order, procedures to be followed by manufacturers in establishing and maintaining such records, including procedures to 36 |