[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Proposed Rules]
[Page 12805-12809]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-39]
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Part IX
Department of Transportation
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National Highway Traffic Safety Administration
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49CFRPart591
Importation of Commercial Motor Vehicles; Proposed Rule
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49CFRPart591
[Docket No. NHTSA 02-11593; Notice 1]
RIN 2127-AI64
Importation of Commercial Motor Vehicles
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to add a definition of the term
``import'' to our regulation on the importation of motor vehicles. A
1966 statute that we administer prohibits the manufacture of new motor
vehicles for sale in the United States unless, at the time of
manufacture, they complied with the Federal motor vehicles safety
standards (FMVSS) then in effect and bear a label certifying that
compliance. The statute also prohibits the importation of new or used
motor vehicles into the United States unless they were manufactured to
conform with, or are brought into conformity with, those standards and
are so certified. In 1975, NHTSA issued an interpretation stating that
the importation prohibition applies to the bringing into the United
States of foreign-domiciled commercial vehicles. We are proposing a
definition of the term ``import'' that would codify this longstanding
interpretation in the Code of Federal Regulations.
This document is one of several being issued by this agency and the
Federal Motor Carrier Safety Administration (FMCSA) to ensure that the
interests of safety are protected as the United States takes the steps
necessary to comply with its obligations under the North American Free
Trade Agreement regarding the access of Mexico-domiciled motor carriers
to the United States.
DATES: Comment closing date: You should submit your comments early
enough to ensure that Docket Management receives them not later than
May 20, 2002.
ADDRESSES: For purposes of identification, please mention the docket
number of this document in your comments. You may submit those comments
in writing to: Docket Management, Room PL-401, 400 Seventh Street, SW.,
Washington, DC, 20590. Alternatively, you may submit your comments by
e-mail at http://dms.dot.gov.
You may call Docket Management at (202) 366-9324, or you may visit
the Docket from 10 a.m. to 5 p.m., Monday through Friday. The Docket is
located at the Plaza level of this building, northeast entrance.
FOR FURTHER INFORMATION CONTACT: For technical issues: Mr. George
Entwistle, Chief, Equipment and Imports Division, Certification Branch,
Office of Safety Assurance, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, DC 20590;
telephone (202) 366-5291; telefax (202) 366-1024.
For legal issues: Mr. Edward Glancy, Office of the Chief Counsel,
National Highway Traffic Safety Administration, 400 Seventh Street,
SW., Washington, DC 20590; telephone (202) 366-2992; telefax (202) 366-
3820.
SUPPLEMENTARY INFORMATION:
Background
On December 17, 1992, the United States, Canada and Mexico signed
the North American Free Trade Agreement (NAFTA). Following approval by
Congress, the Agreement entered into force on January 1, 1994.
Since 1982, a statutory moratorium on the issuance of operating
authority to Mexico-domiciled motor carriers had, with a few
exceptions, limited the operations of such carriers to municipalities
and commercial zones along the United States-Mexico border (``border
zone''). Annex I of NAFTA called for liberalization of access for
Mexico-domiciled motor carriers on a phased schedule. Pursuant to this
schedule, Mexico-domiciled charter and tour bus operations were
permitted beyond the border zone on January 1, 1994. Truck operations
were to have been permitted in the four United States border states in
December 1995, and throughout the United States on January 1, 2000;
scheduled bus operations were to have been permitted throughout the
United States on January 1, 1997.
However, the United States postponed implementation with respect to
Mexico-domiciled truck and scheduled bus service due to concerns about
safety, continuing its blanket moratorium on processing applications by
these Mexico-domiciled motor carriers for authority to operate in the
United States outside the border zone. On February 6, 2001, a NAFTA
dispute resolution panel ruled that the blanket moratorium violated the
United States' commitments under NAFTA.
The Department of Transportation is now in the process of preparing
for the implementation of these NAFTA provisions. NHTSA and FMCSA are
taking the steps necessary to ensure that the provisions are
implemented in a manner consistent with the interests of safety. One of
NHTSA's primary concerns is to ensure that the vehicles used in the
United States complied with the Federal Motor Vehicle Safety Standards
(FMVSSs) in effect at the time that they were manufactured.
NHTSA issues FMVSSs under a statute originally known as the
National Traffic and Motor Vehicle Safety Act. That statue has been
codified at 49 U.S.C. 30101, et seq. (In the interest of simplicity, we
will refer to that statute by as the Vehicle Safety Act.) The purpose
of the Vehicle Safety Act is to reduce the number of crashes and deaths
and injuries resulting from crashes.
The Vehicle Safety Act specifies that, subject to certain
exemptions: \1\
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\1\ For example, our regulations provide that exemptions may be
issued for motor vehicles or items of motor vehicle equipment that
are necessary for research, investigations, demonstrations,
training, competitive racing events, show, or display; vehicles
being temporarily imported for personal use; and vehicles being
temporarily imported by individuals who are attached to the military
or diplomatic services of another country or to an international
organization. (49CFRpart591, Importation of Vehicles and
Equipment Subject to Federal Safety, Bumper and Theft Prevention
Standards.)
A person may not manufacture for sale, offer to sell, introduce
or deliver for introduction in interstate commerce, or import into
the United States, any motor vehicle or motor vehicle equipment
manufactured on or after the date an applicable motor vehicle safety
standard * * * takes effect unless the vehicle or equipment complies
with the standard and is covered by a certification issued under
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section 30115 of this title.
(49 U.S.C. 30112; emphasis added.)
Thus, the FMVSSs apply to new motor vehicles that vehicle
manufacturers manufacture for sale in the United States. They also
apply, subject to certain exemptions, to new or used motor vehicles
that anyone presents for importation, whether for sale, resale or other
purposes, into the United States. The Vehicle Safety Act requires
manufacturers to certify that their vehicles comply with all applicable
safety standards. The vehicles must bear a permanent label that is
applied by the vehicle manufacturer and certifies that the vehicles
complied with all applicable safety standards. 49 U.S.C. 30115.
1975 Interpretation
In 1975, NHTSA addressed the issue of whether Canadian-domiciled
commercial vehicles being operated in the United States were subject to
the FMVSSs. Mr. J.C. Carruth, President of
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the Canadian Trucking Association, wrote to the Department seeking
relief from the above statutory prohibition because it prevented the
operation in the United States of Canada-based commercial vehicles that
were not manufactured in accordance with FMVSS No. 121, Air brake
systems. To provide that relief, Mr. Carruth sought to have those
vehicles temporarily excluded from the Standard.
In a May 9, 1975 letter replying to Mr. Carruth, signed by NHTSA's
Administrator, the agency concluded that this statutory prohibition
applies to these Canada-based commercial vehicles. The agency recited
the prohibition and noted that the Vehicle Safety Act provided that
non-complying motor vehicles shall be refused admission to the United
States under joint regulations issued by the Secretary of the Treasury
and the Secretary of Transportation. The agency also noted that the Act
provided that the two Secretaries may, by joint regulations, permit the
temporary importation of a noncomplying motor vehicle, after the first
purchase of it in good faith for purposes other than resale, i.e.,
after the vehicle had been purchased by an end user and thus was no
longer new. However, while joint regulations had been issued to permit
the temporary importation of a noncomplying motor vehicle for personal
use, none had been issued to permit importation for commercial use on
the highways of the United States. NHTSA concluded that any exclusion
of Canadian-domiciled vehicles operating in the United States from the
requirements of FMVSS No. 121 would be ``an evasion of the Vehicle
Safety Act's prohibition on importation of noncomplying vehicles.''
Although the 1975 letter did not address the issues of commercial buses
or of Mexico-domiciled commercial vehicles, its rationale applied
equally to them.
In 1995, the Department of Transportation publicized this
interpretation in connection with its efforts to prepare for the
implementation of NAFTA. It did so by incorporating the interpretation
in a NAFTA Operating Requirements Handbook, which was printed in three
languages and distributed to all participants at a NAFTA conference
held in San Antonio, TX on November 14-16, 1995. The handbook stated
that all commercial vehicles entering the United States must have been
manufactured in compliance with all applicable FMVSSs and must bear a
label certifying such compliance.
Review and Reaffirmation of 1975 Interpretation
Following the decision of the NAFTA panel in February of this year,
NHTSA reviewed its 1975 interpretation. After consulting with the
Office of Regulations and Rulings of the United States Customs Service
(USCS), NHTSA has tentatively reaffirmed that interpretation and is
proposing to codify it in the Code of Federal Regulations.
We begin by noting that while Congress has codified the Vehicle
Safety Act since the 1975 interpretation, and modified many of the
Act's provisions relating to importation of vehicles, no changes have
been made that affect the 1975 interpretation. The Vehicle Safety Act
continues to specify that, subject to certain exemptions:
A person may not manufacture for sale, offer to sell, introduce
or deliver for introduction in interstate commerce, or import into
the United States, any motor vehicle or motor vehicle equipment
manufactured on or after the date an applicable motor vehicle safety
standard. * * * takes effect unless the vehicle or equipment
complies with the standard and is covered by a certification issued
under section 30115 of this title.
(49 U.S.C. 30112; emphasis added.)
Neither the statute nor any agency regulation exempts commercial
vehicles domiciled in Canada or Mexico from the requirement that the
vehicles must have been manufactured to meet the FMVSSs in order to be
imported into the United States.
Several other factors also lead us to tentatively reaffirm the 1975
interpretation.
First, the interpretation is consistent with the plain meaning of
the word ``import,'' which the dictionary defines as meaning ``to bring
in (merchandise, commodities, workers, etc.) from a foreign country for
use, sale, processing, reexport, or services'' (Random House Compact
Unabridged Dictionary, Special Second Edition).
Second, the interpretation is consistent with the purposes of the
Vehicle Safety Act. The stated purpose of the Act is ``to reduce
traffic accidents and deaths and injuries resulting from traffic
accidents.'' The fact that a commercial vehicle is domiciled in Canada
or Mexico is of no consequence as to its safety when it is being
operated on United States highways.
Third, while courts have sometimes interpreted the term ``import''
in narrower ways, the use of the term in the Vehicle Safety Act is
similar to its use in statutes where the term has been construed
broadly. In particular, we believe that the Vehicle Safety Act's
prohibition on the importation of noncomplying vehicles is analogous to
contraband laws that prohibit the importation of dangerous items. The
Vehicle Safety Act prohibits the importation of noncomplying vehicles
because such vehicles pose greater safety risks than compliant
vehicles.
We note that the Department of Transportation, including
representatives from NHTSA and FMCSA, met with the Office of
Regulations and Rulings of the United States Customs Service on March
8, 2001 to discuss enforcement of the importation prohibition against
foreign-domiciled commercial motor vehicles. At that meeting,
representatives of the Office of Regulations and Rulings agreed with
NHTSA's 1975 interpretation that the bringing of a commercial vehicle
into the United States constituted an importation of the vehicle under
the Vehicle Safety Act.
We are placing in the docket a copy of our 1975 interpretation, as
well as a legal memorandum that was prepared then in support of that
interpretation.
To codify our 1975 interpretation in the Code of Federal
Regulations, we are proposing to add a definition of the term
``import'' to 49CFRPart591, ``Importation of Vehicles and Equipment
Subject to Federal Safety, Bumper, and Theft Prevention Standards.''
This part does not currently include any definition for this term.
Therefore, any definition we add must reflect not only the 1975
interpretation but also represent a complete definition of the term. We
are proposing the following definition:
Import means bring into the United States, whether on a
permanent or temporary basis. This includes, but is not limited to,
bringing a vehicle into the United States for the purpose of
transporting cargo or passengers into the United States.
We note that, under Part591, a person may not import a motor
vehicle into the United States unless the person files one of several
specified declarations. One of the declarations that provides a basis
for the vehicle to be imported, set forth at Sec. 591.5(b), is that the
vehicle complies with all applicable FMVSSs and bears a certification
label to that effect permanently affixed by the original manufacturer.
If the driver of a complying Canada-or Mexico-domiciled commercial
vehicle were stopped at the border by USCS and asked to file a
declaration, the driver would simply need to file the one set forth at
Sec. 591.5(b). (In order for the driver to be able to file that
declaration, the vehicle would, of course, need to comply with all
applicable FMVSSs in effect at the time of original manufacture and
bear a
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certification label to that effect). As a practical matter, however,
drivers of such vehicles would ordinarily not be asked to file a
declaration. This is because USCS interprets its regulations to provide
that commercial motor vehicles engaged in international commerce are
``instruments of international traffic'' and, as such, are not subject
to the process of formal entry.
Companion Actions by NHTSA and FMCSA
This document is one of several related actions by NHTSA and FMCSA
as part of the Department of Transportation's efforts to ensure that
the interests of safety are protected as the United States takes the
steps to implement the provisions in NAFTA regarding access of Mexico-
domiciled motor carriers to the United States.
FMCSA is issuing four final rules to ensure that the interests of
safety are protected in granting authority for Mexico-domiciled motor
carriers to operate within the United States. Two of the final rules
revise FMCSA's regulations and forms governing applications by those
carriers for such authority. The forms require additional information
about each applicant's business and operating practices to help FMCSA
to determine if the applicant is capable of meeting the safety
requirements established for operating in interstate commerce in the
United States. Among other things, a carrier must certify on its
application form that the vehicles it will use in the United States
were manufactured in compliance with the applicable FMVSSs. The third
final rule, being issued on an interim basis, establishes a safety
monitoring system and compliance initiative to further aid in
determining whether Mexico-domiciled carriers applying to operate
anywhere in the United States have the capability to comply with
applicable safety regulations and conduct safe operations. The fourth
final rule, also issued on an interim basis, establishes procedures to
certify and maintain certification for auditors and investigators.
Other actions include (1) an NPRM issued by FMCSA proposing to
require that all commercial motor vehicles operating in the United
States have labels certifying their compliance with the FMVSSs in
effect when they were built, (2) a draft policy statement issued by
NHTSA providing that a vehicle manufacturer may, if it has sufficient
basis for doing so, retroactively apply a label to a motor vehicle
certifying that the vehicle complied with all applicable FMVSSs in
effect at the time of manufacture, and (3) an NPRM issued by NHTSA
proposing recordkeeping requirements for foreign manufacturers that
retroactively certify vehicles.
We request comments on this proposed definition.
Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this proposed rule under
Executive Order 12866 and the Department of Transportation's regulatory
policies and procedures. This proposed rule was not reviewed by the
Office of Management and Budget under E.O. 12866, ``Regulatory Planning
and Review.'' This action is not ``significant'' under the Department
of Transportation's regulatory policies and procedures.
This proposed rule would not impose any new requirements or mandate
the expenditure of any resources. Instead, it would improve the clarity
of the agency's regulation on imports by codifying a longstanding
intepretation concerning the meaning of the term ``import.''
B. Regulatory Flexibility Act
NHTSA has considered the effects of this proposed rule under the
Regulatory Flexibility Act. I hereby certify that it would not have a
significant economic impact on a substantial number of small entities.
As noted above, the proposed rule would not impose any new
requirements or mandate the expenditure of any resources, but would
instead improve the clarity of the agency's regulation on imports by
codifying a longstanding interpretation concerning the meaning of the
term ``import.''
C. National Environmental Policy Act
NHTSA has analyzed this proposed rule for the purposes of the
National Environmental Policy Act and determined that it would not have
any significant impact on the quality of the human environment.
D. Executive Order 13132 (Federalism)
The agency has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132 and has
determined that it would not have sufficient federal implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The proposed rule would not
have any substantial impact on the States, or on the current Federal-
State relationship, or on the current distribution of power and
responsibilities among the various local officials.
E. Unfunded Mandates Act
The Unfunded Mandates Reform Act of 1995 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 annually for inflation with base year of 1995). Adjusting
this amount by the implicit gross domestic product price deflator for
the year 2000 results in $109 million (106.99/98.11 = 1.09). The
assessment may be included in conjunction with other assessments.
This proposed rule would not mandate any expenditures by State,
local or tribal governments, or by the private sector.
Submission of Comments
How Do I Prepare and Submit Comments?
Your comments must be written and in English. To ensure that your
comments are correctly filed in the Docket, please include the docket
number of this document in your comments.
Your comments must not be more than 15 pages long. (49CFR 553.21).
We established this limit to encourage you to write your primary
comments in a concise fashion. However, you may attach necessary
additional documents to your comments. There is no limit on the length
of the attachments.
Please submit two copies of your comments, including the
attachments, to Docket Management at the address given above under
ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of
your comments, enclose a self-addressed, stamped postcard in the
envelope containing your comments. Upon receiving your comments, Docket
Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of
confidentiality, you should submit three copies of your complete
submission, including the information you claim to be confidential
business information, to the Chief Counsel, NHTSA, at the address given
above under FOR FURTHER INFORMATION CONTACT. In addition, you should
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submit two copies, from which you have deleted the claimed confidential
business information, to Docket Management at the address given above
under ADDRESSES. When you send a comment containing information claimed
to be confidential business information, you should include a cover
letter setting forth the information specified in our confidential
business information regulation. (49CFRPart 512.)
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives
before the close of business on the comment closing date indicated
above under DATES. To the extent possible, we will also consider
comments that Docket Management receives after that date. If Docket
Management receives a comment too late for us to consider it in
developing a final rule (assuming that one is issued), we will consider
that comment as an informal suggestion for future rulemaking action.
How Can I Read the Comments Submitted by Other People?
You may read the comments received by Docket Management at the
address given above under ADDRESSES. The hours of the Docket are
indicated above in the same location.
You may also see the comments on the Internet. To read the comments
on the Internet, take the following steps:
Go to the Docket Management System (DMS) Web page of the Department
of Transportation (http://dms.dot.gov/).
On that page, click on ``search.''
On the next page (http://dms.dot.gov/search/), type in the four-
digit docket number shown at the beginning of this document. Example:
If the docket number were ``NHTSA-1998-1234,'' you would type ``1234.''
After typing the docket number, click on ``search.''
On the next page, which contains docket summary information for the
docket you selected, click on the desired comments. You may download
the comments.
Please note that even after the comment closing date, we will
continue to file relevant information in the Docket as it becomes
available. Further, some people may submit late comments. Accordingly,
we recommend that you periodically check the Docket for new material.
List of Subjects in 49CFRPart591
Imports, Motor vehicle safety, Motor vehicles, Reporting and
recordkeeping requirements.
In consideration of the foregoing, NHTSA proposes to amend 49CFRpart591 as follows:
PART591--IMPORTATION OF VEHICLES AND EQUIPMENT SUBJECT TO FEDERAL
SAFETY, BUMPER, AND THEFT PREVENTION STANDARDS
1. The authority citation for part591 is revised to read as
follows:
Authority: 49 U.S.C. 322(a), 30112, 30114; Pub. L. 100-562, 102
Stat. 2824; Pub. L. 105-178, 12 Stat. 469; delegations of authority
at 49CFR 1.50 and 501.8.
2. Section 591.2 is revised to read as follows:
Sec. 591.2 Purpose.
The purpose of this part is to ensure that:
(a) Motor vehicles and motor vehicle equipment permanently imported
into the United States conform with theft prevention standards issued
under part 541 of this chapter and that they conform with, or are
brought into conformity with, all applicable Federal motor vehicle
safety standards issued under part 571 of this chapter and bumper
standards issued under part 581 of this chapter;
(b) Foreign-domiciled commercial motor vehicles that are brought
into the United States were manufactured to conform with, or are
brought into conformity with, all applicable Federal motor vehicle
safety standards issued under part 571 of this chapter and any
applicable theft prevention and bumper standards; and
(c) Nonconforming vehicles and equipment items imported on a
temporary basis are ultimately either exported or abandoned to the
United States.
3. Section 591.4 is amended by adding a definition in alphabetical
order to read as follows:
Sec. 591.4 Definitions.
* * * * *
Import means bring into the United States, whether on a permanent
or temporary basis. This includes, but is not limited to, bringing a
vehicle into the United States for the purpose of transporting cargo or
passengers into the United States.
* * * * *
Issued on March 6, 2002.
Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.
[FR Doc. 02-5896 Filed 3-14-02; 8:45 am]
BILLING CODE 4910-59-P
