[Federal Register: March 19, 2002 (Volume 67, Number 53)]
[Proposed Rules]               

From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr02-37]                         


[[Page 12789]]

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Part VII





Department of Transportation





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National Highway Traffic Safety Administration



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49 CFR Part 567



Retroactive Certification of Commercial Vehicles by Motor Vehicle 
Manufacturers; Proposed Rule


[[Page 12790]]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 567

[Docket No. NHTSA 02-11594; Notice 1]
RIN 2127-AI59

 
Retroactive Certification of Commercial Vehicles by Motor Vehicle 
Manufacturers

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Proposed policy statement; request for comments.

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SUMMARY: NHTSA seeks comment on a draft policy statement. The policy is 
part of the Department of Transportation's efforts 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.
    The policy statement is being issued pursuant to the National 
Traffic and Motor Vehicle Safety Act of 1966, codified at 49 U.S.C. 
Chapter 301, which provides for the issuance of Federal Motor Vehicle 
Safety Standards (FMVSSs), requires all vehicles imported into the 
United States or introduced into interstate commerce to have been 
manufactured in compliance with those standards, and requires that a 
label bearing a statement certifying that compliance be attached to 
each vehicle. These requirements apply to new motor vehicles that 
vehicle manufacturers produce for sale in the United States. New or 
used motor vehicles imported into the United States that were not 
originally manufactured in compliance with all applicable FMVSSs must 
also be certified after they have been brought into compliance with 
those standards. NHTSA has long interpreted ``import'' to include 
bringing a commercial motor vehicle into the United States for the 
purpose of transporting cargo or passengers.
    The policy statement addresses commercial motor vehicles that were 
not originally manufactured for sale in the United States, and thus 
were not required at the time of manufacture to be certified as 
complying with the FMVSSs, but are subsequently sought to be imported 
into the United States. The statement provides that a vehicle 
manufacturer may, if it has sufficient basis for doing so, 
retroactively apply a label to a commercial motor vehicle certifying 
that the vehicle complied with all applicable FMVSSs in effect at the 
time it was originally manufactured.
    The purpose of this policy statement is to facilitate compliance by 
motor carriers domiciled in other countries, primarily those in Mexico 
and Canada, with the above statute and a companion notice of proposed 
rulemaking by the Federal Motor Carrier Safety Administration (FMCSA). 
In its document, FMCSA will be proposing to promote the effective 
enforcement of that statute by requiring that all commercial motor 
vehicles operating in the United States have labels certifying their 
compliance with the FMVSSs in effect when they were built. NHTSA has 
been advised that there are many commercial motor vehicles used by 
motor carriers in Mexico and Canada that were manufactured in 
accordance with the FMVSSs, but were not certified as complying with 
those standards because the vehicles were manufactured for sale in 
Canada or Mexico. In two separate documents, NHTSA will be proposing 
recordkeeping requirements for foreign manufacturers that retroactively 
certify vehicles, and proposing to codify its interpretation of the 
term ``import,'' as used in the statute, by incorporating that 
interpretation into its primary regulation concerning the importation 
of vehicles.

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: Ms. Rebecca MacPherson, 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:

Table of Contents

I. Background
    A. NAFTA provisions for cross border operation of commercial 
motor vehicles
    B. Implementation of the NAFTA provisions in a manner consistent 
with safety
    1. NHTSA
    2. FMCSA
II. FMCSA proposal to require all commercial motor vehicles to bear 
a FMVSS certification label
III. NHTSA draft policy statement on retroactive certification of 
the compliance of commercial motor vehicles with the FMVSSs
IV. Companion NHTSA actions
V. Request for comments
VI. Rulemaking analysis and notices
VII. Submission of comments
Appendix to Preamble--FMVSSs applicable to commercial motor vehicles

    Text to be added to the Code of Federal Regulations

I. Background

A. NAFTA Provisions for Cross Border Operation of Commercial Motor 
Vehicles

    On December 17, 1992, the United States, Canada and Mexico signed 
the North American Free Trade Agreement (NAFTA). Following 
Congressional approval, the Agreement entered into force on January 1, 
1994.
    Since 1982, a statutory moratorium in the United States on the 
issuance 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.
    Because of concerns about safety, the United States postponed 
implementation with respect to Mexico-domiciled truck and scheduled bus 
service and continued its blanket moratorium on processing applications

[[Page 12791]]

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.

B. Implementation of the NAFTA Provisions in a Manner Consistent With 
Safety

    The Department of Transportation (DOT) is now preparing for the 
implementation of these NAFTA provisions. The Department's NHTSA and 
FMCSA are committed to taking the steps necessary to ensure that the 
NAFTA provisions are implemented in a manner consistent with the 
interests of safety.
1. NHTSA
    While NHTSA does not have any enforcement authority over motor 
carriers, it does administer a statute that affects the operations in 
the United States of motor carriers domiciled in other countries. The 
statute requires that motor vehicles manufactured for sale in the 
United States or imported into the United States, i.e., vehicles that 
are driven on the public roads and highways of the United States, be 
manufactured so as to reduce the likelihood of motor vehicle crashes 
and of deaths and injuries when crashes do occur. That statute is the 
National Traffic and Motor Vehicle Safety Act of 1966 (``Vehicle Safety 
Act'') (codified as 49 U.S.C. 30101, et seq.).
    One of the agency's most important functions under that Act is to 
issue and enforce the FMVSSs. Many of these standards specify safety 
performance requirements for motor vehicles, while others do so for 
items of motor vehicle equipment. Manufacturers of motor vehicles must 
certify compliance with all applicable safety standards and permanently 
affix a label to each vehicle stating that the vehicle complies with 
all applicable FMVSSs.\1\
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    \1\ The Vehicle Safety Act requires that motor vehicle 
manufacturers certify the compliance of motor vehicles with the 
FMVSS before introducing them into interstate commerce, offering 
them for sale or selling them. Vehicles are not subject to pre-
introduction, pre-offer, or pre-sale approval by NHTSA.
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    The Vehicle Safety Act specifies that:

    A manufacturer or distributor of a motor vehicle or motor 
vehicle equipment shall certify to the distributor or dealer at 
delivery that the vehicle or equipment complies with the applicable 
motor vehicle safety standards prescribed under this chapter. A 
person may not issue a certificate if, in exercising reasonable 
care, the person has reason to know the certificate is false or 
misleading in a material respect. Certification of a vehicle must be 
shown by a label or tag permanently fixed to the vehicle.

(49 U.S.C. 30115.)
    The Vehicle Safety Act further provides that, subject to specific 
exemptions,\2\

    \2\ 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, demonstration, 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 service of another country or to an international 
organization (49 CFR Part 591, Importation of Vehicles and Equipment 
Subject to Federal Safety, Bumper and Theft Prevention Standards.)
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    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.)
    Since 1975, NHTSA has interpreted this provision of section 30112 
as applying to all vehicles entering the United States. In a letter 
from the NHTSA Administrator to the Canadian Trucking Association, the 
agency stated that commercial vehicles transporting cargo into and 
within the United States are imports within the context of 49 U.S.C. 
30112 and must be certified.\3\ Although the 1975 letter did not 
address the issue of Mexico-domiciled motor carriers, its rationale 
applied equally to those carriers.
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    \3\ See letter dated May 9, 1975 from NHTSA Administrator James 
B. Gregory to M. C. Carruth, Docket No. NHTSA-02-11594.
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    In 1995, DOT publicized this interpretation in connection with its 
efforts to prepare for the implementation of NAFTA. DOT 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 North American Free Trade Agreement (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. A list of the FMVSSs 
that are applicable to commercial motor vehicles, as well as a brief 
synopsis of those standards, may be found in the appendix to the 
preamble of this document. (We have placed a copy of the relevant 
portions of the Handbook in the docket for this document.)
    Following the decision of the NAFTA panel in February of this year, 
NHTSA reviewed its 1975 interpretation. As noted below in the section 
on ``Companion NHTSA actions,'' after consulting with the Office of 
Regulations and Rulings of the United States Customs Service (USCS), 
NHTSA has reaffirmed that interpretation and is seeking public comment 
on codifying it in the Code of Federal Regulations.
2. FMCSA
    FMCSA is the agency within the Department of Transportation that is 
responsible for oversight of commercial motor carriers. It regulates 
the operation of vehicles used to transport both cargo (primarily on 
heavy trucks and trailers) and passengers (primarily in heavy buses). 
Its regulations address both the commercial motor vehicles and drivers 
of those vehicles. The regulations also require commercial motor 
carriers, i.e., those businesses that engage in the transport of cargo 
or passengers, to meet specified operating requirements.
    The condition of safety equipment and features on commercial motor 
vehicles is governed by 49 CFR Part 393, Parts and Accessories 
Necessary for Safe Operation. The Federal Motor Carrier Safety 
Regulations (FMCSRs) in Part 393 currently cross-reference most of the 
FMVSSs applicable to heavy trucks and buses. (Part 393 does not 
currently require that commercial motor vehicles have a FMVSS 
certification label.) The FMCSRs require that motor carriers operating 
in the United States, including Mexico-domiciled carriers, must 
maintain much of the safety equipment and features that NHTSA requires 
vehicle manufacturers to install.
    Generally, enforcement of the FMVSSs incorporated in the FMCSRs by 
FMCSA and its Motor Carrier Safety Assistance Act grant partners is 
accomplished through roadside inspections. If the violations are 
discovered during a roadside inspection, a citation may be issued under 
Part 393 or conforming State laws and regulations. If violations are 
serious enough to meet the out-of-service criteria used in roadside 
inspections (i.e., the condition of the vehicle is likely to cause a 
crash or cause the vehicle to break down), the vehicle would be placed 
out of service until the necessary repairs are made. The roadside 
inspection procedure is the same for all commercial motor vehicles 
operated in the United States, regardless

[[Page 12792]]

of the country in which a motor carrier is domiciled. The FMCSA also 
has the option of imposing civil penalties for violations of Part 393. 
Any violations of the FMVSSs that also constitute violations of Part 
393 could subject motor carriers to a maximum civil penalty of up to 
$10,000 per violation. FMCSA has the statutory authority to prohibit 
the operation of commercial motor vehicles by motor carriers that fail 
to pay civil penalties for violations of the FMCSRs.
    If the FMCSA determines that a Mexico-domiciled carrier is 
operating vehicles that do not comply with the applicable FMVSSs, this 
information could be used to take appropriate enforcement action 
against the carrier for making a false certification on its application 
under 49 CFR Part 365, Rules Governing Applications for Operating 
Authority, for a Certificate of Registration or operating authority. 
Such action could include suspension or even revocation of such 
registration or authority.
    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 the 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 its vehicles 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 FMCSA 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 being issued on an interim 
basis, establishes procedures to certify and maintain certification for 
auditors and investigators.

II. FMCSA Proposal To Require All Commercial Motor Vehicles Have a 
FMVSS Certification Label

    FMCSA is taking steps to help enforce the prohibition against 
importing into this country motor vehicles that do not have labels 
certifying their compliance with the FMVSSs. Specifically, FMCSA is 
proposing to amend Part 393 to require that all commercial motor 
vehicles operating within the United States, including those operated 
by Canada- and Mexico-domiciled carriers, bear a FMVSS certification 
label. As with all existing requirements in Part 393, the new 
requirement would apply to all commercial motor vehicles engaged in 
transporting passengers or cargo in the United States, regardless of 
where they are domiciled. If Part 393 is ultimately amended to include 
a requirement that each commercial motor vehicle have a FMVSS 
certification label, civil penalties could be assessed against a motor 
carrier operating a vehicle without a FMVSS certification label. 
However, FMCSA would not place a commercial motor vehicle out of 
service solely because it lacks a FMVSS certification label, since such 
a violation would not meet the out-of-service criteria established by 
that agency.

III. NHTSA Draft Policy Statement on Retroactive Certification of 
Commercial Motor Vehicles With the FMVSSs

    NHTSA has been advised that many of the vehicles currently operated 
by Mexico- and Canada-domiciled motor carriers may meet all applicable 
FMVSSs even if they were manufactured for use in Mexico and Canada and 
thus were not required to, and do not, bear a FMVSS certification 
label. In general, these are vehicles that were built at the same 
assembly plants and according to the same design specifications as 
vehicles manufactured for sale in the United States and certified to 
the FMVSSs. They may bear a label certifying compliance to Canadian 
standards or, in the instance of vehicles manufactured for the Mexican 
market, may bear no certification label at all. If these vehicles were 
manufactured to comply with the FMVSSs, they could be as safe as 
vehicles manufactured for sale in the United States. Nevertheless, it 
would be a violation of the Vehicle Safety Act to bring these vehicles 
into the United States because they do not bear a FMVSS certification 
label.
    The agency already has an informal policy in place that addresses a 
similar situation. Since 1999, NHTSA has allowed, in certain 
circumstances, Canadian vehicle manufacturers to place certification 
labels retroactively on previously leased passenger cars and light 
trucks that would have met all applicable FMVSSs after minor 
modifications, such as changing the odometer from mph to km/h. These 
leased vehicles were essentially identical to ones manufactured for 
sale in the United States by the same manufacturers.
    We note that only those manufacturers that have produced vehicles 
for sale in the United States are likely to have generated the type of 
data and analysis necessary to enable them to certify their vehicles to 
the FMVSSs, whether contemporaneously or retroactively.
    NHTSA and FMCSA representatives met with representatives of the 
Mexican and Canadian governments, and Mexican manufacturers and 
trucking industry associations, in Mexico City on June 20, 2001. NHTSA 
and FMCSA were told then by Mexican vehicle manufacturers that many 
Mexican commercial vehicles built since 1994 were built in conformity 
with applicable FMVSSs. NHTSA was advised that of the approximately 
400,000 trucks and buses that operate on the Federal roads in Mexico, 
about 130,000 may comply with all applicable FMVSSs. Most of these 
130,000 trucks and buses, however, do not have a FMVSS certification 
label because it is not required for vehicles manufactured for sale in 
Mexico.
    NHTSA, FMCSA, USCS, the Environmental Protection Agency and 
Transport Canada conducted a follow-up seminar in Mexico on August 2-3, 
2001, to tell representatives of Mexican vehicle manufacturers and the 
motor carrier industry about the requirements of the United States. 
During the seminar, the Mexican vehicle manufacturers indicated that 
they would consider affixing a certification label retroactively, 
depending on the results of their review of vehicle test data, and on 
their ability to make a determination that a particular vehicle or 
group of vehicles met all applicable FMVSSs in effect on the date of 
manufacture.
    NHTSA tentatively concludes that extending the agency's policy on 
retroactive certification to vehicles that are engaged in the transport 
of goods or passengers across Canadian or Mexican borders would 
facilitate the compliance of Mexico- and Canada-domiciled motor 
carriers with the requirement for operating FMVSS-certified vehicles in 
the United States, without any adverse effects on safety, while also 
helping the United States to meet its obligations under NAFTA. Absent 
such an extension, Mexico- and Canada-domiciled carriers could not use 
any of their existing vehicles lacking a FMVSS certification label in 
the United States, even those that complied with the FMVSSs at the time 
of their manufacture.

[[Page 12793]]

    Under NHTSA's draft policy statement, a manufacturer wishing to 
certify a commercial motor vehicle retroactively and affix a FMVSS 
certification label to that vehicle would have to assure itself that 
the vehicle did, in fact, comply with all applicable FMVSSs in effect 
at the time of original manufacture or that it could be readily 
modified so that the vehicle, as modified, would have met the standards 
in effect at the time the vehicle was originally manufactured.
    In order to certify compliance retroactively, it is likely that the 
manufacturer would engage in a multi-step evaluation process. In most, 
if not all, cases, it would need to identify a substantially similar 
vehicle (``paired vehicle'') that it certified, at the time of 
manufacture, as complying with all applicable FMVSSs and then determine 
whether there are any design, production, or other differences between 
the paired vehicle and the candidate vehicle. This determination would 
likely include an assessment of whether the component parts of the two 
vehicles are substantially similar. A manufacturer would then need to 
determine whether any of those differences preclude the candidate 
vehicle from being in compliance with all applicable FMVSSs. If 
modifications were needed to bring the vehicle into compliance with 
applicable FMVSSs, the manufacturer would have to make those 
modifications. Likewise, if either NHTSA or the manufacturer had 
decided, subsequent to the certification of the paired vehicle, that 
that vehicle did not comply with one or more applicable FMVSSs, the 
manufacturer would have to correct any similar noncompliances in the 
candidate vehicle before certifying compliance.
    Once the evaluation process is complete and the manufacturer has 
made any necessary repairs or modifications, it may apply the 
retroactive certification label to the commercial motor vehicle. The 
label must be applied by the manufacturer because the certification 
responsibility belongs to the vehicle manufacturer under the Vehicle 
Safety Act. The label cannot be applied by other parties such as owner, 
lessee, or operator of the vehicle. The label must meet the 
requirements of Part 567. It must state the month and year of original 
manufacture of the vehicle. It must also state the month and year in 
which it was affixed to the vehicle.
    NHTSA anticipates that the need for retroactive certification of 
commercial vehicles will eventually disappear. The expanded policy is 
intended to be a short-term solution to a short-term problem. In the 
long run, the simplest course of action for Mexico- and Canada-
domiciled motor carriers would be to buy or lease vehicles certified at 
the time of manufacture as complying with all applicable FMVSSs. 
Likewise, the simplest course of action for Mexican and Canadian 
vehicle manufacturers would be to place FMVSS certification labels on 
any FMVSS compliant vehicles at the time of manufacture even if they 
are not certain whether the vehicles will be used in cross-border 
operations. NHTSA believes that manufacturers will quickly be able to 
determine whether vehicles they are currently manufacturing comply with 
all applicable FMVSS, and to bring them into compliance promptly if 
they are not. Thus, the opportunity under the expanded policy to 
certify commercial vehicles retroactively would be limited to vehicles 
manufactured before August 31, 2002. Additionally, NHTSA believes 
manufacturers do not need an unlimited amount of time to determine 
whether existing vehicles complied with all applicable safety standards 
in effect at the time of manufacture. Likewise, motor carriers do not 
need an unlimited amount of time to determine whether they need to 
request a manufacturer to retroactively certify a particular vehicle. 
Accordingly, NHTSA is proposing to terminate this policy of allowing 
retroactive certification for commercial vehicles on September 1, 2005.
    If a motor carrier wishes to use a heavy truck or bus manufactured 
after August 31, 2002 in its operations within the United States, the 
vehicle would be required to comply with the applicable FMVSS and have 
a FMVSS certification label applied by the vehicle manufacturer at the 
time of manufacture. If the carrier does not intend to operate the 
vehicle in the United States, then there would, of course, be no 
requirement that the vehicle bear a FMVSS certification label.
    Vehicle manufacturers would not be required to retroactively 
certify the compliance of a motor vehicle and in many instances would 
be unable to do so. This inability would stem from the fact that the 
certification of a vehicle would in most, if not all, cases be based on 
data that the manufacturer generated at the time the vehicle was 
originally built. As a practical matter, only those manufacturers that 
produced and certified substantially similar vehicles for sale in the 
United States at the same time that the non-certified vehicle was 
manufactured are likely to have generated this information.
    Should a vehicle manufacturer decline to certify a motor carrier's 
vehicle retroactively, the carrier may be able to have the vehicle 
certified by a registered importer. An individual or business 
registered with NHTSA as a registered importer under 49 CFR Part 592, 
Registered Importers of Vehicles Not Originally Manufactured to Conform 
to the Federal Motor Vehicle Safety Standards, may import non-complying 
motor vehicles into the United States. However, a registered importer 
may do so only if NHTSA has determined under 49 CFR Part 593, 
Determinations that a Vehicle Not Originally Manufactured to Conform to 
the Federal Motor Vehicle Safety Standards is Eligible for Importation, 
that the vehicles are capable of being readily altered to comply with 
all applicable standards in effect at the time the vehicle is imported. 
As of this date, NHTSA has not made any such determination regarding 
any vehicle that would be covered by the draft policy statement.
    Furthermore, the registered importer must provide the Federal 
Government with a bond equal to 1.5 times the dutiable value of the 
vehicle before it can be imported and must bring the vehicle into full 
compliance before any vehicle may be sold or released for highway use 
and the bond released. For detailed information on NHTSA's registered 
importer program, please refer to http://www.nhtsa.dot.gov/cars/rules/
maninfo/.

IV. Companion NHTSA Actions

    As noted above, in two separate documents, NHTSA will be proposing 
recordkeeping requirements for manufacturers that retroactively certify 
vehicles, and to codify its interpretation of the term ``import,'' as 
used in the Vehicle Safety Act. The first document will propose 
requiring that manufacturers that retroactively certify their vehicles 
maintain information sufficient to identify those vehicles. This 
information would include any vehicle identification number (VIN) on 
each vehicle, or comparable information if the vehicle does not have a 
VIN. The other document will discuss the basis for our 1975 
interpretation of the term ``import'' as including bringing commercial 
vehicles into the United States for the purpose of transporting cargo 
or passengers, and propose to codify that interpretation in Part 591.

V. Request for Comments

    This draft policy statement is not subject to the notice and 
comment requirements of the Administrative Procedure Act (5 U.S.C. 
553(b)(A)).

[[Page 12794]]

Nevertheless, NHTSA is seeking public comment on the draft statement 
before publishing a final version.
    (1) Please comment on whether a termination date of August 31, 2005 
would provide sufficient time to accommodate the needs of the Mexico- 
and Canada-domiciled motor carriers.
    (2) Please comment on whether retroactive certification should be 
permitted in instances in which the vehicle must be modified 
significantly, such as modifications that would entail additional 
testing by the manufacturer to assure that the vehicle, as modified, 
would have complied with the FMVSSs in effect when the vehicle was 
originally manufactured.

VI. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this draft policy statement 
under Executive Order 12866 and the Department of Transportation's 
regulatory policies and procedures. This draft policy statement 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 draft policy statement would not mandate compliance with any 
new requirements or the expenditure of any resources. Instead, it would 
facilitate compliance with the requirement in the Vehicle Safety Act 
for imported vehicles to be certified as complying with all applicable 
FMVSS and with a proposal that FMCSA will issue to require that all 
commercial motor vehicles operating in the United States to be so 
certified.

B. Regulatory Flexibility Act

    NHTSA has considered the effects of this draft policy statement 
under the Regulatory Flexibility Act. I hereby certify that it would 
not have a significant economic impact on a substantial number of small 
entities. The statement would primarily affect manufacturers of motor 
vehicle, and secondarily affect motor carriers. Few motor vehicle 
manufacturers qualify as small businesses.
    The Small Business Administration's regulations define a small 
business, in part, as a business entity ``which operates primarily 
within the United States.'' (13 CFR part 121.105(a)) SBA's size 
standards are organized according to Standard Industrial Classification 
Codes (SIC). SIC Code 3711 ``Motor Vehicles and Passenger Car Bodies'' 
has a small business size standard of 1,000 employees or fewer. SIC 
Code 3714 ``Motor Vehicle Parts and Accessories'' has a small business 
size standard of 750 employees or fewer.
    As noted above, this draft policy statement would not mandate 
compliance with any new requirements or the expenditure of any 
resources. Instead, it would facilitate compliance with the requirement 
in the Vehicle Safety Act for imported vehicles to be certified as 
complying with all applicable FMVSS and with a proposal that FMCSA will 
issue to require that all commercial motor vehicles operating in the 
United States to be so certified.

C. National Environmental Policy Act

    NHTSA has analyzed this draft policy statement 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 draft policy statement 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 statement 
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 draft policy statement would not mandate any expenditures by 
State, local or tribal governments.

VII. 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. (49 CFR 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 
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. (49 CFR part 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.

[[Page 12795]]

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.

Appendix to Preamble--FMVSS Applicable to Commercial Motor Vehicles

    The following table sets forth the FMVSSs that are applicable to 
heavy trucks, heavy buses (other than school buses), and trailers. A 
brief synopsis of each standard is presented after the table. All 
three vehicle classifications apply to vehicles with a gross vehicle 
weight rating greater than 4,536 kg. While there may be some 
commercial motor vehicles that are not classified as a heavy truck, 
heavy bus, or trailer, the vast majority of commercial motor 
vehicles will fit into one of these categories.

*If equipped with hydraulic brakes.
**If equipped with air brakes.
++If engine is powered by CNG.

Synopsis of FMVSSs Applicable to Heavy Trucks, Buses and Trailers

FMVSS No. 101, Controls and Displays

    Effective date: September 1, 1972.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: If equipped with a control listed in the standard, 
shall meet the requirements for the location, identification, and 
illumination of the control. No requirements exist for displays, 
e.g., hazard warning telltale. Examples of controls: Turn signal, 
windshield defroster, and heating and air conditioning system.
    Location: Controls must be operable by the driver wearing his/
her seat belt.
    Identification: Symbol, if listed in the standard; wording if 
stated in the standard.
    Illumination: For the controls listed in the standard with some 
exceptions, e.g., controls that are foot operated or located on the 
floor, floor console, or steering column, or in the windshield 
header area. Brightness must be adjustable.

FMVSS No. 102, Transmission Shift Lever Sequence, Starter 
Interlock, and Transmission Braking Effect

    Effective date: September 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: If equipped with an automatic transmission, must have 
a transmission braking effect, starter interlock, and identification 
of shift lever positions. If equipped with a manual transmission, 
must identify the shift pattern. Automatic transmission shift lever 
identification: The position selected, e.g., drive, and other 
positions, e.g., neutral, in front of and in clear view of the 
driver. Manual transmission shift pattern: All except 3-speed, H 
pattern, in driver's view.

FMVSS No. 103, Windshield Defrosting and Defogging Systems

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: A defrosting and defogging system.

FMVSS No. 104, Windshield Wiping and Washing Systems

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Power driven windshield wipers and washer system.

FMVSS No. 105, Hydraulic and Electric Brake Systems

    Effective date: September 1, 1983.
    Recent amendments: Brakes must have automatic adjustment, 
October 20, 1993.

[[Page 12796]]

Antilock brake system equipment requirement, effective March 1, 
1999.
    Requirements for new heavy trucks and buses:
    Equipment: Service brakes on all wheels, automatic adjusters 
(drum type brakes), and an antilock brake system that directly 
controls the wheels of at least one front and rear axle.

FMVSS No. 106, Brake Hoses

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks, trailers, and buses:
    Equipment: Aftermarket hoses must be labeled according to the 
standard.

FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment

    Effective date: January 1, 1968.
    Recent amendments: Conspicuity systems: trailers must be 
equipped with retroreflective sheeting and/or reflectors, December 
1, 1993; truck tractors, July 1, 1997.
    Requirements for new heavy trucks, trailers, and buses:
    Equipment: As shown in the wall poster, the lamps, reflective 
devices, and associated equipment, e.g., retroreflective strips and/
or reflex reflectors for the rear of trailers and truck tractors and 
the side of trailers, must be located as specified in the standard.

FMVSS No. 111, Rearview Mirrors

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Outside mirrors of unit magnification, each with not 
less than 323 sq cm of reflective surface, on both sides of the 
vehicle, adjustable both in the horizontal and vertical directions 
to view the rearward scene.

FMVSS No. 113, Hood Latch Systems

    Effective date: January 1, 1969.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Each hood must have a hood latch system; a front 
opening hood that could obstruct the driver's view must have a 
second latch.

FMVSS No. 116, Hydraulic Brake Fluid

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks, buses, and trailers, if 
equipped with hydraulic brakes:
    Equipment: Fluid used in these vehicles must have been 
manufactured and packaged according to the requirements in the 
standard.

FMVSS No. 119, New Pneumatic Tires for Vehicles Other Than 
Passenger Cars.

    Effective date: March 1, 1975.
    Recent amendments: None.
    Requirements for new heavy trucks, trailers, and buses:
    Equipment: Tires on these vehicles must have required markings, 
e.g., the symbol DOT certifying that the tire complies with 
applicable FMVSS, tire identification number, tire size designation, 
maximum load rating and corresponding inflation pressure, any speed 
restriction, the number of plies and ply composition, the words 
``tubeless'' or ``tube type,'' ``regroovable,'' and ``radial,'' as 
applicable, and the letter designating load range.

FMVSS No. 120, Tire Selection and Rims for Motor Vehicles Other 
Than Passenger Cars

    Effective date: August 1, 1976.
    Recent amendments: None.
    Requirements for heavy trucks, trailers, and buses:
    Equipment: Sum of tire load ratings of tires on an axle must be 
equal to or greater than the axle's GAWR; rims must be permanently 
marked including size, e.g., 20 x 5.5 (inches) and DOT; a label on 
the vehicle must display, for each axle, a tire size and inflation 
pressure appropriate for the GAWR.

FMVSS No. 121, Air Brake Systems

    Effective date: January 1, 1975; Note: stopping distance 
requirements rescinded effective August 9, 1979, but reinstated as 
shown below.
    Recent amendments:
    Equipment: Brakes must have automatic adjustment, October 20, 
1994. Antilock brake system including malfunction indicator required 
for truck tractors, March 1, 1997, and for trucks and buses, March 
1, 1998. Vehicles that tow another air-braked vehicle shall have an 
electrical circuit for the other vehicle's ABS. Towing vehicles 
shall have an electrical circuit for indicating a malfunction in the 
other vehicle's ABS, March 1, 2001. ABS on trailers and malfunction 
signal, March 1, 1998, and external malfunction indicator lamp, from 
March 1, 1998 through end of February 2009.
    Requirements for new heavy trucks and buses:
    Equipment: Compressor, reservoirs, towing vehicle protection, 
pressure gauge, warning signal, ABS with malfunction indicator, 
brakes on all wheels, automatic brake adjustment with indicator.
    Requirements for new trailers with air brakes:
    Equipment: Reservoirs, ABS with malfunction signal and external 
lamp, brakes on all wheels, automatic brake adjustment with 
indicator.

FMVSS No. 124, Accelerator Control Systems

    Effective date: September 1, 1993.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: At least two sources of energy returning throttle to 
idle.

FMVSS No. 205, Glazing Materials

    Effective date: January 1, 1968.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Must be labeled as to type, e.g., windshields must be 
marked ``AS-1.''

FMVSS No. 206, Door Locks and Door Retention Components

    Effective date: January 1, 1972.
    Recent amendments: None.
    Requirements for new heavy trucks:
    Equipment: Side doors must have a fully latched and a secondary 
latched position.

FMVSS No. 207, Seating Systems

    Effective date: January 1, 1972.
    Recent amendments: None.
    Requirements for new heavy trucks (all seating positions) and 
buses (driver's seat only):
    Equipment: Vehicle must have a driver's seat; a hinged or 
folding seat must have a self-locking device.

FMVSS No. 208, Occupant Crash Protection

    Effective date: January 1, 1972.
    Recent amendments: None.
    Requirements for heavy trucks (all seats) and buses (driver's 
seat only):
    Equipment: Each seat shall be equipped with a Type 1 (lap) or 
Type 2 (lap and shoulder) seat belt assembly that conforms to FMVSS 
209. Seat belt assembly includes either an emergency locking 
retractor or automatic locking retractor. If an automatic locking 
retractor is used on a suspension seat, it must be attached to the 
seat structure.

FMVSS No. 209, Seat Belt Assemblies

    Effective date: March 1, 1967.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Each seat belt assembly shall be for use by one 
person and must be adjustable to fit a range of occupant sizes from 
5th percentile females to 95th percentile males; labeled as to date 
of manufacture, model No., and trademark of manufacturer, 
distributor, or importer.

FMVSS No. 210, Seat Belt Assembly Anchorages

    Effective date: July 1, 1971.
    Recent amendments: None.
    Requirements for new heavy trucks (all seating positions) and 
buses (driver's seat only):
    Equipment: Anchorages located in the vehicle must be within the 
dimensions and angles stated in the standard, referenced from the 
seating reference point; anchorages for each seat belt assembly 
shall be at least 165 mm apart.

FMVSS No. 217, Bus Emergency Exits and Window Retention and Release

    Effective date: September 1, 1973.
    Recent amendments: None.
    Requirements for new heavy buses other than school buses:
    Equipment: Total emergency exit area (unobstructed openings for 
emergency exits) in sq cm must be at least 432 times the number of 
designated seating positions on the bus; at least 40 percent of the 
total area shall be on each side of the bus; no single exit is 
credited with more than 3,458 sq cm; each bus shall have a rear exit 
unless the bus configuration precludes one, then the bus shall have 
a roof exit in the rear half of the bus; emergency exits can have 
one or two release mechanisms, and at least one must be operated in 
a different direction from the motion to open the exit by 90-180 
degrees; each exit shall be labeled emergency exit or emergency door 
and provide operating instructions.

[[Page 12797]]

FMVSS No. 223, Rear Impact Guards

    Effective date: January 26, 1998.
    Recent amendments: None.
    Requirements for new trailers:
    Equipment: Guard shall be permanently labeled, e.g., 
manufacturer's name and address, month and year of manufacture, and 
must be certified by the symbol DOT, and located as specified in the 
standard; installation instructions shall be provided specifying the 
vehicles on which it can be installed and the method to properly 
install it.

FMVSS No. 224, Rear Impact Protection

    Effective date: January 26, 1998.
    Recent amendments: None.
    Requirements for new trailers:
    Equipment: Rear impact guard meeting FMVSS 223 shall be 
installed. Location and dimensional requirements are specified. Some 
trailers are excluded.

FMVSS No. 302, Flammability of Interior Materials

    Effective date: September 1, 1972.
    Recent amendments: None.
    Requirements for new heavy trucks and buses:
    Equipment: Any single or composite material located within 13 mm 
of the occupant compartment air space shall meet performance 
requirements.

FMVSS No. 304, Compressed Natural Gas Fuel Container Integrity

    Effective date: March 27, 1995.
    Recent amendments: None.
    Requirements for new heavy trucks and buses if operated using 
CNG:
    Equipment: Each CNG fuel container shall be labeled with the 
manufacturer's name, address, and telephone number, month and year 
of manufacture, service pressure, and other informational 
statements. It must also be certified with the symbol DOT.

List of Subjects in 49 CFR Part 567

    Imports, Motor vehicle safety, Motor vehicles.

    In consideration of the foregoing, NHTSA proposes to amend 49 CFR 
Part 567 as follows:

PART 567--CERTIFICATION

    1. The authority citation for Part 567 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30166, 32502, 
32504, 33101-33104, and 33109; delegation of authority at 49 CFR 
1.50.

    2. Add Appendix A to 49 CFR Part 567 to read as follows:

Appendix A to Part 567--Statement of Policy: Retroactive Certification 
of Commercial Motor Vehicles

    I. Agency policy on retroactive certification. It is the policy 
of the National Highway Traffic Safety Administration to allow a 
vehicle manufacturer to retroactively apply a label to a used 
commercial motor vehicle that it originally manufactured, certifying 
the compliance of that motor vehicle with all applicable Federal 
motor vehicle safety standards that were in effect when the vehicle 
was originally manufactured.
    II. Application. This policy applies to commercial motor 
vehicles that were manufactured for sale in Mexico or Canada before 
August 31, 2002 and were not certified at the time that they were 
originally manufactured as complying with all applicable Federal 
motor vehicle safety standards. Any commercial motor vehicle 
certified pursuant to this policy statement must be certified on or 
before August 31, 2005.
    III. Conditions. A vehicle manufacturer may retroactively 
certify the compliance of a commercial motor vehicle with the 
Federal motor vehicle safety standards if the manufacturer meets the 
following conditions:
    A. Determines that the vehicle complied with all applicable 
Federal motor vehicle safety standards in effect at the time the 
vehicle was originally manufactured, or has been modified such that 
it complies with those standards.
    B. Affixes a certification label meeting the requirements of 49 
U.S.C. Sec. 30115 and 49 CFR Part 567. Such label shall state the 
month and year of original manufacture and the month and year of the 
retroactive certification.
    C. Maintains any records required by NHTSA in 49 CFR Part 576, 
Subpart B.
    D. Provides, upon request, any records required by 49 CFR Part 
576, Subpart B.

    Issued on: March 6, 2002.
Kenneth N. Weinstein,
Associate Administrator for Safety Assurance.
[FR Doc. 02-5897 Filed 3-14-02; 8:45 am]
BILLING CODE 4910-59-P



  
  

  
 


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