[Federal Register Volume 67, Number 53 (Tuesday, March 19, 2002)]
[Proposed Rules]
[Pages 12806-12809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-5896]



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Part IX





Department of Transportation





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National Highway Traffic Safety Administration



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49 CFR Part 591



Importation of Commercial Motor Vehicles; Proposed Rule

  Federal Register / Vol. 67, No. 53 / Tuesday, March 19, 2002 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 591

[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. (49 CFR part 591, 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 49 CFR Part 591, ``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 Part 591, 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. (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

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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. (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.

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 49 CFR Part 591

    Imports, Motor vehicle safety, Motor vehicles, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, NHTSA proposes to amend 49 CFR 
part 591 as follows:

PART 591--IMPORTATION OF VEHICLES AND EQUIPMENT SUBJECT TO FEDERAL 
SAFETY, BUMPER, AND THEFT PREVENTION STANDARDS

    1. The authority citation for part 591 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 49 CFR 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]
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