[Federal Register Volume 62, Number 92 (Tuesday, May 13, 1997)]
[Notices]
[Pages 26348-26352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12488]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. 96-114; Notice 2]
Final Decision That Certain Nonconforming Vehicles are Eligible
for Importation
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Final decision that certain nonconforming vehicles are eligible
for importation.
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SUMMARY: This document announces a final decision by the Administrator
of the National Highway Traffic Safety Administration (NHTSA) that
certain vehicles that do not comply with all applicable Federal motor
vehicle safety standards, but that are certified by their original
manufacturer as complying with all applicable Canadian motor vehicle
safety standards, are eligible for importation into the United States.
The vehicles in question either (1) Are substantially similar to
vehicles that were certified by their manufacturers as complying with
the U.S. safety standards and are capable of being readily altered to
conform to those standards, or (2) have safety features
[[Page 26349]]
that comply with, or are capable of being altered to comply with all
U.S. safety standards. This document also announces NHTSA's decision to
rescind the vehicle eligibility number that was formerly applicable to
all vehicles certified by their original manufacturer as complying with
Canadian safety standards (eligibility number VSA-1), and to assign
four separate eligibility numbers to Canadian certified vehicles, based
on those vehicles' classification and weight.
DATES: This decision is effective on May 13, 1997.
FOR FURTHER INFORMATION CONTACT: George Entwistle, Office of Vehicle
Safety Compliance, NHTSA (202-366-5306).
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. Sec. 30141(a)(1)(A), a motor vehicle that was not
originally manufactured to conform to all applicable Federal motor
vehicle safety standards (FMVSS) shall be refused admission into the
United States unless NHTSA has decided that the vehicle is
substantially similar to a motor vehicle of the same model and model
year that was originally manufactured for import into and sale in the
United States and was certified as complying with all applicable FMVSS,
and also finds that the noncompliant vehicle is capable of being
readily altered to comply with all applicable FMVSS. Where there is no
substantially similar U.S.-certified motor vehicle, 49 U.S.C.
Sec. 30141(a)(1)(B) permits a nonconforming motor vehicle to be
admitted into the United States if NHTSA decides that its safety
features comply with, or are capable of being altered to comply with,
all applicable FMVSS.
On March 7, 1997, NHTSA published a notice in the Federal Register
at 62 FR 10614 announcing that it had made a tentative decision that
certain motor vehicles that do not comply with all applicable FMVSS,
but that are certified by their original manufacturer as complying with
all applicable Canadian Motor Vehicle Safety Standards, are eligible
for importation into the United States. The notice identified these
vehicles as:
(a) All passenger cars manufactured on or after September 1, 1996
and before September 1, 2002, that, as originally manufactured, are
equipped with an automatic restraint system that complies with Federal
Motor Vehicle Safety Standard (FMVSS) No. 208, and that comply with
FMVSS No. 214;
(b) All multipurpose passenger vehicles, trucks and buses
manufactured on or after September 1, 1993, and before September 1,
1998, that, as originally manufactured, comply with FMVSS Nos. 202,
208, and 216; and
(c) All multipurpose passenger vehicles, trucks and buses
manufactured on or after September 1, 1998, and before September 1,
2002, that, as originally manufactured, comply with FMVSS Nos. 202,
208, 214, and 216.
The reader is referred to the March 7 notice for a full discussion
of the factors leading to the tentative decision.
The notice also proposed to rescind Vehicle Eligibility Number VSA-
1, which NHTSA had established as the designator for importers to use
on the HS-7 Declaration Form accompanying entry to indicate the import
eligibility of all vehicles certified by their original manufacturer as
complying with all applicable Canadian motor vehicle safety standards
(CMVSS). In place of this designator, the notice proposed to assign
four separate eligibility numbers (VSA-80 through VSA-83) to Canadian-
certified vehicles, based on vehicle classification (i.e., passenger
car, multipurpose passenger vehicle, truck, bus, trailer, motorcycle)
and, in the case of multipurpose passenger vehicles, buses and trucks,
based also on vehicle weight. The reader is also referred to the March
7 notice for a full discussion of this proposal.
In accordance with 49 U.S.C. Sec. 30141(b), the notice solicited
public comments on the tentative decision that NHTSA had made and on
the agency's proposal to assign new import eligibility numbers to
Canadian-certified vehicles. Four comments were submitted in response
to the notice. The first of these was submitted by members of the North
American Automotive Trade Association (NAATA). In their comment, the
NAATA members requested NHTSA to be as expedient as possible in making
a final decision regarding the import eligibility of Canadian-certified
passenger cars manufactured on or after September 1, 1996 that comply
with FMVSS Nos. 208 and 214. The NAATA members also requested the
agency to preserve for Canadian market vehicles a waiver from the fee
established at 49 CFR 594.8 for importing a vehicle pursuant to an
eligibility decision by the NHTSA Administrator. In support of this
request, the NAATA members contended that NHTSA incurs no additional
administrative overhead or burden in processing these vehicles, in
comparison to the agency's processing of Canadian market vehicles that
have previously been determined eligible for importation. Additionally,
the NAATA members characterized the proposed change in eligibility
numbers for Canadian-certified vehicles as being merely clerical in
nature, and not resulting in any actual change to ``the entry or
compliance package approval process.''
The second comment was submitted by Philip Trupiano of Auto
Enterprises, Inc. of Clawson, Michigan, a Registered Importer of
nonconforming vehicles. In his comment, Mr. Trupiano also requested the
agency to expedite its eligibility decision with respect to Canadian-
certified passenger cars manufactured on or after September 1, 1996.
Mr. Trupiano further expressed the opinion that NHTSA should not
establish September 1, 2002, or any other date for the expiration of
import eligibility on Canadian market vehicles. Mr. Trupiano observed
that the notice reflected the agency's intent ``to issue new decisions
covering vehicles manufactured on or after September 1, 2002 within a
sufficient period before that date is reached.'' In Mr. Trupiano's
opinion, NHTSA's ability to honor this intent is undermined by the fact
that it has taken the agency more than seven months from September 1,
1996 to issue a final decision of import eligibility with respect to
Canadian-certified passenger cars manufactured on or after that date.
Mr. Trupiano noted that NHTSA proposed September 1, 2002 as the
next cutoff because that is the date on which revised interior impact
protection requirements that are to be phased in under FMVSS No. 201,
Occupant Protection in Interior, and that are not found in the
corresponding CMVSS, will become effective for all passenger cars and
for multi-purpose passenger vehicles, trucks, and buses with a gross
vehicle weight rating of 10,000 pounds or less. To eliminate the need
for NHTSA to issue a new eligibility decision following the proposed
September 1, 2002 cutoff, Mr. Trupiano suggested that the agency could
make compliance with FMVSS No. 201 a condition for the import
eligibility of all affected vehicles manufactured on or after September
1, 1996.
Although Mr. Trupiano stated that he has no objection to the
proposed assignment of new eligibility numbers to Canadian-certified
vehicles, he expressed the opinion that such a change is unnecessary in
view of the fact that Registered Importers provide information on
vehicle classification in the certificates of conformity that they
submit to NHTSA to obtain the release of bonds posted for noncomplying
vehicle.
Additionally, Mr. Trupiano requested the agency to clarify in
writing that
[[Page 26350]]
vehicles entered under the proposed eligibility numbers would be exempt
from the fee prescribed under 49 CFR 594.8. Mr. Trupiano contended,
without providing any supporting analysis, that the imposition of such
a fee on Canadian-certified vehicles would be in violation of the North
American Free Trade Agreement (NAFTA). Mr. Trupiano further expressed
the understanding that Canadian-certified vehicles are not subject to
the fee prescribed under 49 CFR 594.8 because of an agreement between
NHTSA and the Canadian government reflected in a letter dated March 16,
1990 from Canadian Ambassador D.H. Burney to Jerry R. Curry, who was
then NHTSA Administrator, and a response from Administrator Curry to
Ambassador Burney dated April 24, 1990. Copies of these letters, which
were attached to Mr. Trupiano's comments, have been placed in the
public docket for this eligibility decision. Mr. Trupiano interprets
this correspondence as containing an agreement on NHTSA's behalf to
waive importation fees on Canadian market vehicles which ``cannot be
unilaterally changed.''
The third comment was submitted by Brian Osler, Executive Director
and Counsel to NAATA. In his comment, Mr. Osler expressed agreement
with the agency's tentative decision to extend import eligibility to
Canadian market vehicles manufactured on or after September 1, 1996
that are in compliance with FMVSS Nos. 208 and 214. Mr. Osler took
exception, however, to the proposed eligibility cutoff date of
September 1, 2002, contending, as did Mr. Trupiano, that this will
result in future delays that will cause economic hardship. Mr. Osler
predicted that NHTSA's ``administrative requirements'' will prevent the
agency from honoring its commitment to issue a new eligibility decision
within a reasonable period before the September 1, 2002 cutoff date is
reached. To eliminate the need for a future decision, Mr. Osler
recommended that the tentative decision be revised along the lines
suggested by Mr. Trupiano. Mr. Osler also shared Mr. Trupiano's opinion
that NHTSA has an obligation to adopt this approach under Article 908
of NAFTA, which he characterized as requiring the agency to conduct
FMVSS conformity assessments as expeditiously as possible. Mr. Osler
additionally urged NHTSA to state in writing that vehicles imported
under the proposed eligibility numbers are exempt from the fees
prescribed under 49 CFR 594.8, and contended that this is ``necessary
to ensure that NHTSA does not unduly restrict trade as contemplated by
the Free Trade Agreement.'' Mr. Osler also characterized the
correspondence between Administrator Curry and Ambassador Burney as
reflecting the agency's agreement not to ``impose fees that would
unduly restrict trade between Canada and the United States.''
The fourth comment was submitted by Lawrence A. Beyer, an attorney
who represents several Registered Importers. In his comment, Mr. Beyer
also expressed general agreement with the tentative decision, but
voiced concern that the assignment of new eligibility numbers for
Canadian-certified vehicles could be a ploy for eliminating the fee
waiver that has applied to these vehicles when imported under
eligibility number VSA-1. Mr. Beyer contended that if the agency is so
motivated, its actions would contradict a requirement in 49 CFR Part
594 for fees to be set at the beginning of the fiscal year. Mr. Beyer
further suggested that if NHTSA intends to change the fee structure for
Canadian imports, the agency should publish a separate notice in the
Federal Register concerning the matter, so that those who stand to be
impacted will have a fair opportunity to comment.
NHTSA has considered each of the issues that these comments have
raised. The agency has taken note of the concerns the commenters have
expressed regarding the timing of this final decision. That timing was
influenced, in part, by information that NHTSA obtained from Registered
Importers indicating that Model Year 1997 vehicles would begin to be
retired from Canadian rental fleets in March and April of this year,
reducing the need for an earlier decision regarding the import
eligibility of those vehicles. Contrary to the assumptions expressed by
certain of the commenters, the timing of this decision has no bearing
on any future such actions that NHTSA may take. As stated in the notice
of tentative decision, the agency intends to issue new eligibility
decisions covering vehicles for which the September 1, 2002 cutoff date
was proposed within a sufficient period before that date is reached.
The alternative suggested by certain of the commenters of specifying
compliance with FMVSS No. 201 as a condition for the import eligibility
of vehicles manufactured on or after September 1, 1996 is less
acceptable to the agency. Should Canada adopt the revised interior
impact protection requirements that are to be phased in under FMVSS No.
201 by September 1, 2002, there will be no need for compliance with
this standard to be made a specific condition for import eligibility.
Since those requirements have yet to be phased in, FMVSS No. 201 is at
present substantially similar to its Canadian counterpart, precluding
the need for compliance with the standard to be made a specific
condition for the import eligibility of vehicles manufactured on or
after September 1, 1996.
Contrary to the assumption expressed by one of the commenters,
NHTSA did not propose to assign new vehicle eligibility numbers to
Canadian-certified vehicles as a means to circumvent any purported fee
exemption for those vehicles. As stated in the notice of tentative
determination, the agency instead proposed separate eligibility numbers
based on vehicle classification, and, in the case of multipurpose
passenger vehicles, trucks, and buses, by weight, so that the
eligibility decisions that pertain to Canadian-certified vehicles can
be more readily modified in the event that any future discrepancies
arise between Canadian and U.S. standards that affect only certain
classes of vehicles. The use of a single eligibility number to cover
all vehicle classes made it difficult to keep track of past
modifications to these eligibility decisions. Contrary to the opinion
of one commenter, the need for separate eligibility numbers is not
undermined by the existence of vehicle classification information in
the certificates of conformity that Registered Importers submit to
NHTSA. The agency is not proposing separate eligibility numbers so that
it can monitor the volume of Canadian imports by vehicle class, but
instead to facilitate any future modifications to the eligibility
determinations that may become necessary.
As the commenters recognized, the notice of tentative decision was
entirely silent with respect to the issue of fees for Canadian imports.
NHTSA did not introduce the subject because its intent was to have an
eligibility decision in place as soon as possible to cover vehicles
manufactured on or after September 1, 1996, without the delays that a
controversy over fees could engender. In point of fact, there is no
existing ``waiver'' of fees for Canadian vehicles. The importers of
these vehicles must pay the fee for reimbursement of the U.S. Customs
Service's bond processing costs established under 49 CFR 594.9.
The fee for importing a vehicle pursuant to a determination by the
Administrator found at 49 CFR 594.8 is imposed, as that section states,
to cover the direct and indirect costs incurred by NHTSA in making the
eligibility determination. This fee is now set at
[[Page 26351]]
$134, and, as stated at 49 CFR 594.8(a), is payable by each importer of
a vehicle covered by an import eligibility determination made under 49
CFR Part 593.
At the time that it was first established, the fee for importing a
motor vehicle pursuant to an eligibility determination on the
Administrator's initiative based on the existence of a substantially
similar U.S.-certified vehicle was $1,560, to be paid only by the
importer of the first vehicle covered by the determination. See 54 FR
40100, 40108 (September 29, 1989). Consistent with this provision, in
the notice announcing its first final determination of import
eligibility for Canadian-certified vehicles, published on August 13,
1990 at 55 FR 32988, NHTSA stated that the $1,560 fee then required
under 49 CFR 593.8 would ``be payable only once, and by the first
importer of any Canadian vehicle covered by this determination.'' 55 FR
32990.
In his correspondence with the Canadian Ambassador that is cited by
several of the commenters, former NHTSA Administrator Curry stated that
``the fee of $1,560 would cover the blanket determination of all
passenger cars, and would not be applied to each individual make and
model year of passenger car,'' thereby ``effectively moot[ing] Canada's
. . . request that Canadian market passenger cars be exempted from the
determination fee.'' It is worth noting that this letter neither stated
nor otherwise acknowledged the existence of any exemption from
importation fees for Canadian vehicles. The letter in fact stated that
the Ambassador's request for such an exemption could not be granted in
that the fees established by the agency were specifically required by
the Imported Vehicle Safety Compliance Act of 1988, Pub. L. 100-562.
Although NHTSA has continued to collect the other fees established
under 49 CFR Part 594 from the importers of Canadian-certified
vehicles, the agency has not been collecting the fee prescribed under
section 594.8 from those importers because that fee has already been
paid by the first person to import a Canadian-certified vehicle under
an eligibility decision made by the agency. That payment in theory
reimbursed NHTSA for its costs in making the import eligibility
decision. As a consequence, NHTSA has stated at various junctures that
the fee for importing a vehicle pursuant to an Administrator's
determination would not apply to Canadian vehicles covered by
eligibility number VSA-1. See, e.g., 58 FR 41681, 41682 (August 5,
1993) and 61 FR 51043, 51044 (September 30, 1996).
Even though NHTSA is now rescinding eligibility number VSA-1, and
replacing it with four separate eligibility numbers based on vehicle
classification and weight, the agency does not intend to collect the
importation fee established under 49 CFR 594.8 from the importers of
vehicles covered by those eligibility numbers. First, the agency
recognizes that the assignment of new eligibility numbers for Canadian-
certified vehicles does not constitute a new import eligibility
determination with respect to those vehicles that would justify
imposition of the fee required under 49 CFR 594.8. However, even if
payment of that fee could be justified, given the volume of
nonconforming Canadian imports (which exceeded 15,000 vehicles in
calendar year 1995 alone), the only fee that could be assessed on a
``per-vehicle'' basis to reimburse the agency for its costs in making
eligibility decisions regarding those vehicles would be too minuscule
to justify its imposition.
NHTSA is currently considering, however, proposing fees pursuant to
49 U.S.C. Sec. 30141(a)(3) to reimburse the agency's costs associated
with making decisions as to whether particular vehicles may be released
by registered importers, i.e, the costs for the review and processing
of certificates of conformity submitted by registered importers to
document that vehicles that were not originally manufactured to conform
to all applicable FMVSS have been brought into conformity with those
standards. Such fees would apply to all vehicles for which conformity
certificates are submitted to NHTSA, including vehicles imported from
Canada.
Final Decision
Accordingly, the Administrator of NHTSA hereby decides that:
(a) All passenger cars manufactured on or after September 1, 1996 and
before September 1, 2002, that, as originally manufactured, are
equipped with an automatic restraint system that complies with Federal
Motor Vehicle Safety Standard (FMVSS) No. 208, and that comply with
FMVSS No. 214;
(b) All multipurpose passenger vehicles, trucks and buses manufactured
on or after September 1, 1993, and before September 1, 1998, that, as
originally manufactured, comply with FMVSS Nos. 202, 208, and 216; and
(c) All multipurpose passenger vehicles, trucks and buses manufactured
on or after September 1, 1998, and before September 1, 2002, that, as
originally manufactured, comply with FMVSS Nos. 202, 208, 214, and 216;
that are certified by their original manufacturer as complying with all
applicable Canadian motor vehicle safety standards, are eligible for
importation into the United States on the basis that either:
1. they are substantially similar to vehicles of the same make,
model, and model year originally manufactured for importation into and
sale in the United States, or originally manufactured in the United
States for sale there, and certified as complying with all applicable
FMVSS, and are capable of being readily altered to conform to all
applicable FMVSS; or
2. They have safety features that comply with, or are capable of
being altered to comply with, all applicable FMVSS.
Vehicle Eligibility Number
The importer of a vehicle admissible under any final decision must
indicate on the Form HS-7 accompanying entry the appropriate vehicle
eligibility number indicating that the vehicle is eligible for entry.
Vehicle Eligibility Number VSA-1 has previously covered all eligible
vehicles certified by their original manufacturer as complying with all
applicable CMVSS. NHTSA hereby rescinds that eligibility number and
assigns the following eligibility numbers to the vehicles it covered,
and to those admissible under this notice of final decision:
Vehicles Certified by Their Original Manufacturer as Complying with all
Applicable Canadian Motor Vehicle Safety Standards
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Number Vehicles
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VSA-80......................... (a) All passenger cars less than 25
years old that were manufactured
before September 1, 1989;
(b) All passenger cars manufactured on
or after September 1, 1989, and before
September 1, 1996, that, as originally
manufactured, are equipped with an
automatic restraint system that
complies with Federal Motor Vehicle
Safety Standard (FMVSS) No. 208;
[[Page 26352]]
(c) All passenger cars manufactured on
or after September 1, 1996 and before
September 1, 2002, that, as originally
manufactured, are equipped with an
automatic restraint system that
complies with FMVSS Nos. 208, and that
comply with FMVSS No. 214.
VSA-81......................... (a) All multipurpose passenger
vehicles, trucks, and buses with a
GVWR of 4536 kg. (10,000 lbs.) or less
that are less than 25 years old and
that were manufactured before
September 1, 1991;
(b) All multipurpose passenger
vehicles, trucks, and buses with a
GVWR of 4536 kg. (10,000 lbs.) or less
that were manufactured on and after
September 1, 1991, and before
September 1, 1993, and that, as
originally manufactured, comply with
FMVSS Nos. 202 and 208;
(c) All multipurpose passenger
vehicles, trucks and buses with a GVWR
of 4536 kg. (10,000 lbs.) or less that
were manufactured on or after
September 1, 1993, and before
September 1, 1998, and that, as
originally manufactured, comply with
FMVSS Nos. 202, 208, and 216;
(d) All multipurpose passenger
vehicles, trucks and buses with a GVWR
of 4536 kg. (10,000 lbs.) or less,
that were manufactured on or after
September 1, 1998, and before
September 1, 2002, and that, as
originally manufactured, comply with
the requirements of FMVSS Nos. 202,
208, 214, and 216.
VSA-82......................... All multipurpose passenger vehicles,
trucks and buses with a GVWR greater
than 4536 kg. (10,000 lbs.) that are
less than 25 years old.
VSA-83......................... All trailers, and all motorcycles that
are less than 25 years old.
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Authority: 49 U.S.C. 30141 (a)(1)(A) and (b)(1); 49 CFR 593.8;
delegation of authority at 49 CFR 1.50.
Issued on: May 7, 1997.
Ricardo Martinez,
Administrator.
[FR Doc. 97-12488 Filed 5-12-97; 8:45 am]
BILLING CODE 4910-59-P