[Federal Register Volume 70, Number 165 (Friday, August 26, 2005)]
[Proposed Rules]
[Pages 50277-50290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16968]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Parts 567, 576 and 591
[Docket No. NHTSA-2005-22197]
RIN 2127-AI59, RIN 2127-AI60, RIN 2127-AI64
Retroactive Certification of Commercial Motor Vehicles by Motor
Vehicle Manufacturers
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of withdrawal of proposed rulemakings and policy
statement.
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SUMMARY: This document completes NHTSA's consideration of its
responsibilities to help implement the obligations of the United States
under the North American Free Trade Agreement. The agency had proposed
regulations to permit retroactive certification of foreign domiciled
vehicles that, while built in compliance with U.S. standards applicable
at the time of manufacture, had not been labelled as such. At the same
time, the Federal Motor Carrier Safety Administration had proposed to
require all commercial motor vehicles operating in the U.S. to have
labels certifying compliance with the Federal motor vehicle safety
standards (FMVSS).
After reviewing the comments on the NHTSA and FMCSA proposals, the
Department has decided on a more effective and less cumbersome approach
to ensuring that commercial motor vehicles were built to the FMVSS (or
the very similar Canadian motor vehicle safety standards) and operate
safely in the United States.
[[Page 50278]]
FMCSA requires Mexican-domiciled carriers applying to operate in
the United States to certify in their applications that their vehicles
were manufactured or retrofitted in compliance with the FMVSSs
applicable at the time they were built, and will confirm that
certification during the pre-authority safety audit and subsequent
inspections. In addition, enforcement through the Federal Motor Carrier
Safety Regulations focuses on real world, operational safety and
incorporates the various FMVSS applicable through the useful life of
the vehicle.
FMCSA will not require vehicles to have labels certifying their
compliance with the standards in effect when they were built, and NHTSA
is not proceeding with a retroactive certification approach or the
related proposal for a new recordkeeping and retention rule. We have
also decided against placing a definition of the term ``import'' in the
Code of Federal Regulations. After considering the comments, we have
concluded that creating a new regulation to define the term serves no
regulatory function and is unnecessary for the promotion of motor
vehicle safety.
FOR FURTHER INFORMATION CONTACT: For technical issues, you may call
Julie Abraham, Director of the NHTSA International Policy, Fuel Economy
and Consumer Program, at 202-366-0846.
For legal issues, you may call Edward Glancy of the NHTSA Office of
Chief Counsel, at 202-366-2992.
You may send mail to both of these officials at the National
Highway Traffic Safety Administration, 400 Seventh St., SW.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. U.S. Moratorium on Operating Authority for Mexican-domiciled
Motor Carriers
B. NAFTA-U.S. Commitments and the Moratorium
C. NAFTA-Related Activities by the Department of Transportation
II. Summary of Comments
III. NHTSA Analysis of the Differences Between the FMVSSs and the
CMVSSs
IV. Impact of a Certification Requirement on Canadian- and Mexican-
domiciled Commercial Motor Carriers
A. Federal Motor Carrier Safety Regulations
B. Canadian-domiciled Commercial Motor Vehicles
1. Volume of the U.S.-Canadian Cross-border Trade
2. Impact of the Proposed Rules on Canadian Motor Carriers
3. Safety Record of Commercial Motor Vehicles Selected for
Inspection
B. Mexican-domiciled Commercial Motor Vehicles
V. FMCSA's Enforcement Policy
VI. NHTSA's Interpretation of the Import Prohibition in the Vehicle
Safety Act
A. NHTSA's 1975 Interpretation
B. Possible Alternative Interpretations of the Import
Prohibition
1. Import--Illegal Goods Definition
2. Import--Definition Used in Determining Whether an Item
Brought into the U.S. is Subject to Tariff
3. Import--Use of Tariff Definition in non-Tariff Context
C. Factors not Considered in the 1975 Interpretation or NPRM
1. U.S. Customs Regulations in Effect in 1966
2. Treatment of Canadian-domiciled Commercial Motor Vehicles
3. FY 2002 DOT Appropriations Act
Appendix
I. Background
A. U.S. Moratorium on Operating Authority for Mexican-Domiciled Motor
Carriers
Since 1982, a statutory moratorium on the issuance of operating
authority to Mexican-domiciled motor carriers has, with a few
exceptions, limited the operations of such carriers to municipalities
and commercial zones along the United States-Mexico border (``border
zone''). Bus Regulatory Reform Act of 1982, Public Law No. 97-261, 96
Stat. 1102 (1982). The nearly blanket moratorium, which initially
applied to both Mexican- and Canadian-domiciled motor carriers, was
lifted against Canada pursuant to a memorandum from President Reagan to
the United States Trade Representative published in the Federal
Register. 47 FR 54053; December 1, 1982.
The memorandum was issued after the United States and Canada
agreed, via an exchange of letters, to lift certain trade restrictions
that were prohibiting the free flow of goods across the U.S.-Canadian
border. Safety of the Canadian commercial motor vehicles was not
identified as an area of concern in these letters.
B. NAFTA-U.S. Commitments and the Moratorium
Groundwork for lifting the moratorium as to Mexican-domiciled
commercial motor vehicles was laid on December 17, 1992, when the
United States, Canada and Mexico signed the North American Free Trade
Agreement (NAFTA or Agreement). Following approval by Congress, the
Agreement entered into force on January 1, 1994. NAFTA establishes a
free trade area, and its primary objectives are the promotion of free
trade and investment through the elimination of trade barriers and the
facilitation of cross-border movement of goods and services.
Annex I of NAFTA called for liberalization of access for Mexican-
domiciled motor carriers on a phased schedule. Annex I: Reservations
for Existing Measures and Liberalization Commitments, Schedule of the
United States. Pursuant to this schedule, Mexican-domiciled charter and
tour bus operations were to be 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
Mexican-domiciled truck and scheduled bus service due to concerns about
safety, continuing its blanket moratorium on processing applications by
these Mexican-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. NAFTA Panel Established Pursuant to Chapter Twenty in the Matter
of Cross-Border Trucking Services Final Report (Feb. 6, 2001), 40
I.L.M. 772.
C. NAFTA-Related Actions by the Department of Transportation
The Department of Transportation is now preparing for the
implementation of the NAFTA provisions concerning Mexican-domiciled
motor carriers. The Department is adopting and implementing appropriate
and effective safety measures as the United States takes the steps
necessary to comply with its obligations under NAFTA regarding the
access of Mexican-domiciled motor carriers engaged in interstate
commerce to the United States.
As part of that effort, NHTSA has been examining the question of
what role it should play under a statute originally known as the
National Traffic and Motor Vehicle Safety Act. That statute has been
codified at 49 U.S.C. 30101, et seq. (In the interest of simplicity, we
will refer to that statute 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.
Pursuant to the Vehicle Safety Act, NHTSA issues Federal motor
vehicle safety standards (FMVSSs) that apply to new motor vehicles that
are manufactured for sale in the United States. The FMVSSs also apply,
subject
[[Page 50279]]
to certain exemptions, to new or used motor vehicles imported into the
United States. The Vehicle Safety Act requires manufacturers to certify
that their vehicles, at the time of manufacture, comply with all
applicable safety standards. 49 U.S.C. 30112. Each manufacturer must
give evidence of this certification by affixing to its vehicles a
permanent label stating that the manufacturer certifies that the
vehicles comply with all applicable safety standards. 49 U.S.C. 30115.
In 1975, NHTSA 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 Canadian 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.\1\ Although the 1975 letter did not
address the issue of Mexico-domiciled commercial motor vehicles, its
rationale applied equally to those vehicles.
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\1\ See letter dated May 9, 1975 from NHTSA Administrator James
B. Gregory to M. C. Carruth, Docket No. NHTSA-02-11593.
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Following the decision of the NAFTA panel in February 2001, NHTSA
reviewed its 1975 interpretation. On March 19, 2002, we proposed to
define the term ``import'' in the Code of Federal Regulations in a
manner consistent with the 1975 interpretation and sought comment on
that interpretation of that term (67 FR 12806, Docket No. NHTSA-02-
11593).
FMCSA also issued an NPRM on that date, proposing to require that
all commercial motor vehicles operating in interstate commerce in the
United States have labels certifying their compliance with the FMVSSs
in effect when they were built (67 FR 12782, Docket No. FMCSA 01-
10886). FMCSA is the agency within the Department of Transportation
that is responsible for oversight of commercial motor carriers engaged
in interstate commerce. Its regulations address both the commercial
motor vehicles \2\ (generally large trucks or passenger-carrying
vehicles) operated in interstate commerce 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.
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\2\ A ``commercial vehicle'' is any self-propelled or towed
motor vehicle used on a highway in interstate commerce to transport
passengers or property when the vehicle: (1) Has a gross vehicle
weight rating (GVWR) or gross combination weight rating (GCWR)--or a
gross vehicle weight (GVW) or gross combination weight (GCW)--of
4,536 kilograms (10,001 pounds) or more, whichever is greater; or
(2) is designed or used to transport more than 8 passengers,
including the driver, for compensation; or (3) is designed or used
to transport more than 15 passengers, including the driver, whether
or not it is used to transport passengers for compensation; or (4)
is used in transporting material found by the Secretary of
Transportation to be hazardous under 49 U.S.C. 5103 and transported
in a quantity requiring placarding under regulations prescribed by
the Secretary under 49 CFR, Subtitle B, Chapter I, Subchapter C. See
49 CFR 390.5.
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In conjunction with those two proposals, NHTSA issued a request for
comments on a draft policy statement providing that a vehicle
manufacturer may, if it has sufficient basis for doing so,
retroactively certify that a motor vehicle complied with all applicable
FMVSSs in effect at the time of manufacture and affix a label to that
effect (March 19, 2002, 67 FR 12790, Docket No. NHTSA 02-11594). To
facilitate compliance further, FMCSA proposed a short-term exception
from its proposed requirement, allowing a two-year grace period for
carriers with existing operating authority to have their vehicles
retroactively certified. New operators would have had to comply with
the FMCSA requirement immediately. In addition, NHTSA issued an NPRM
proposing recordkeeping requirements for manufacturers that
retroactively certify their vehicles (March 19, 2002, 67 FR 12800,
Docket No. NHTSA 02-11592).
The comment period for all four notices ended on May 20, 2002.
After careful consideration of the comments (which are discussed
below) and also consistent with the actions being taken by FMCSA, we
have decided to withdraw the three documents. The Department has
developed a more effective and less cumbersome approach to ensure that
commercial motor vehicles operating in the United States were
originally built to the FMVSSs (or, as discussed below, the very
similar Canadian motor vehicle safety standards (CMVSSs)) applicable at
the time of their manufacture and operate safely in the U.S.
FMCSA, among other things, requires Mexican-domiciled carriers
applying to operate in the United States to certify in their
application that their vehicles were manufactured or retrofitted in
compliance with the FMVSSs applicable at the time they were built and
will confirm that certification during the pre-authority safety audit
and subsequent inspections.
FMCSA's enforcement program will ensure that commercial motor
vehicles operating in the United States comply with all of the
operating and maintenance regulations necessary for real world safety.
With only a few differences, the Canadian motor vehicle safety
standards are identical to the U.S. manufacturing performance standards
(the FMVSS), and FMCSA's operating regulations incorporate the FMVSS
critical to continued safe operation. As necessary, FMCSA's enforcement
program may use VINs and other available information to check that
commercial motor vehicles operating in the U.S. were originally built
to the FMVSS or CMVSS applicable at the time of their manufacture.
FMCSA will not require vehicles to have labels certifying their
compliance with the standards in effect when they were built, and is
withdrawing its proposal on that subject. NHTSA is not proceeding with
a retroactive certification approach or the related proposal for a new
recordkeeping and retention rule. We have also decided against placing
a definition of the term ``import'' in the Code of Federal Regulations.
After considering the comments, we have concluded that creating a new
regulation to define the term serves no regulatory function and is
unnecessary for the promotion of motor vehicle safety.
II. Summary of Comments
A total of 79 comments, many of them duplicative, were received in
the docket for the four rulemakings. Most of the comments addressed the
FMCSA notice proposing that all commercial motor vehicles operating in
the U.S. be certified and be labeled as certified. However, several of
the commenters also addressed the implications of the proposed
definition of the word ``import'' and its impact on the existing open
U.S.-Canadian border and motor vehicle safety. Only a few commenters
offered an opinion as to the validity of the interpretation on which
the proposed definition of ``import'' was based.
Various trade organizations representing both motor carriers and
truck manufacturers submitted comments generally opposed to the group
of rulemakings. Representatives of the transit industry, labor
organizations, vehicle insurers, and consumer groups filed comments
that were generally supportive of the NPRM proposing to define
``import,'' but generally not supportive of the draft policy statement
on retroactive certification or the proposed recordkeeping
requirements. They were particularly concerned about the potential for
fraud and abuse if retroactive certification were permitted. They were
also opposed to the proposed grace period in the FMCSA rulemaking.
[[Page 50280]]
Additionally, the Canadian government, as well as two of its
provinces, Manitoba, and Newfoundland and Labrador, filed submissions.
While the Canadian authorities noted that they understood and supported
the right of the U.S. to ensure the safety of its roads, they said that
inspection and crash data showed that Canadian commercial vehicles are
at least as safe as U.S. commercial vehicles. They argued that, in
those circumstances, extending the certification requirements to the
Canadian vehicles amounts to a technical trade barrier under the WTO
and NAFTA.
Canada emphasized the substantial similarity between the CMVSSs and
the FMVSSs, as well as the similarity between their underlying statute
and ours (both of which are over 30 years old). The CMVSSs are
intentionally harmonized with the FMVSSs to the maximum extent
possible. The exceptions are generally limited to labeling requirements
(metric, both French and English) and those instances in which the
Canadian environment is unique (mandatory daytime running lights
because of long periods of twilight in many parts of the country).
Industry representatives agreed with Canada's assessment, noting
that like the U.S., Canada has a long history of comprehensive and
substantially similar safety standards that govern the manufacture of
motor vehicles, including commercial trucks. They said that, in some
instances, the Canadian standards are arguably more stringent than the
U.S. standards. The Truck Manufacturers Association (TMA) stated that,
from a safety perspective, the two major areas of difference between
U.S. and Canadian heavy vehicles are the effective dates for anti-lock
brake systems (ABS) and automatic brake adjusters. It argued, however,
that this lag time is of no practical consequence in view of the
requirement at 49 CFR 393.55 of the Federal Motor Carrier Safety
Regulations (FMCSRs) that all commercial motor vehicles operating in
the U.S. be equipped with ABS and automatic brake adjusters that meet
the requirements of FMVSS No. 105, Hydraulic and Electric Brake
Systems, or FMVSS No. 121, Air Brake Systems.
Canada also observed that the U.S. and Canada have engaged in
mutual acceptance of safety rules related to commercial motor carriers
(e.g., acceptance of commercial driver's license qualifications,
vehicle inspection standards) since 1982, when the moratorium on
issuing operating authority to Canadian-domiciled motor carriers was
lifted. This system of mutual recognition has proven effective in
maximizing cross-border trade, while ensuring that each country's
legitimate safety concerns are sufficiently addressed.
The American Trucking Associations (ATA) argued that NHTSA should
not interpret ``import'' to include the entrance of foreign commercial
motor vehicles engaged in the transport of goods in the cross-border
trade. It argued that this interpretation is inconsistent with the U.S.
Customs classification of such vehicles as ``instruments of
international commerce,'' instead of ``imports.'' The province of
Newfoundland and Labrador argued that commercial vehicles that enter
the U.S. for purpose of the carriage of goods or passengers should not
be considered imports unless there is a change of ownership such that
the vehicle can no longer be considered foreign-domiciled.
The Transportation Trades Department of the AFL-CIO (TTD),
International Brotherhood of Teamsters (IBT), American Insurance
Association (AIA), Public Citizen and Advocates for Highway and Auto
Safety (Advocates) all believe NHTSA's 1975 interpretation of the
import prohibition should be applied today, that it is based on
``unequivocal'' statutory language, and that it is needed to ensure the
safety of our roadways. However, their comments and criticisms were
limited to the impact of non-certified commercial motor vehicles coming
into the United States from Mexico.
AIA pointed out that the NAFTA panel decision specifically allows
for U.S. safety agencies to impose measures that guarantee the safe
operation of trucks in the U.S., even if those measures impose
limitations or requirements on Mexican-domiciled motor carriers that
are not imposed on U.S.- or Canadian-domiciled carriers. It also noted
that a lack of sufficient guarantees of safety, as a general rule,
makes a class of business less insurable or increases the cost of
coverage. The IBT argued that the application of vehicle safety
requirements to Mexican carriers is consistent with the policy
expressed by Congress in the Murray-Shelby legislation (section 350 of
the 2002 DOT Appropriations Act, Pub. L. 107-87) regarding the
importance of preventing unsafe commercial motor vehicles from entering
the U.S.
The Amalgamated Transit Union (ATU) and Greyhound, as well as AIA,
argued that all commercial motor vehicles should be required to have a
sticker or plate (i.e., a FMVSS certification label) before they are
allowed to operate in the U.S., regardless of whether they have
previously been allowed to operate in this country. They argued also
that the grace period contemplated in the FMCSA proposal was
inappropriate.
Various commenters claimed that the vast majority of Mexican-
manufactured buses did not comply with the FMVSSs when originally
manufactured, and do not comply now (particularly as to brakes, fuel
systems, windows, and emergency exits). They also said that it is
apparent from the FMCSA/NHTSA notices, when considered together, that
many thousands of Mexican carriers have been traveling into the U.S.
for many years without conforming to the U.S. safety standards. They
argued that non-compliant commercial motor vehicles present a special
safety hazard on U.S. roads, and non-compliant motor coaches, in
particular, are especially dangerous for both bus passengers and other
highway users. They believe the requirement that all vehicles display a
valid FMVSS certification label would rectify this problem.
Advocates and AIA tentatively supported the concept of retroactive
certification, although they expressed some concerns about the program,
most notably the possibility of the issuance of mistaken, unsupported,
or fraudulent certifications. They argued that the large population of
ineligible Mexican vehicles would inevitably encourage the issuance of
false certifications and the production of fraudulent labels. They also
argued that the proposed policy statement does not provide sufficient
safeguards to ensure that only those vehicles that, in fact, complied
when originally manufactured (or are subsequently modified to achieve
compliance) would actually be certified. Finally, they claimed that
since Mexican manufacturers and carriers are unfamiliar with the
FMVSSs, and there is no labeling requirement in Mexico, the only way to
verify compliance of each Mexican-manufactured vehicle certified as
conforming to the FMVSSs is to inspect each vehicle along with the
documentation at the time of the pre-authorization safety audit.
Without this initial, threshold confirmation of conformity with the
FMVSSs, they argued, Mexican-domiciled motor carriers might certify
their vehicles without any demonstrable proof of conformity.
III. NHTSA's Analysis of the Differences Between the FMVSSs and the
CMVSSs
As noted by Canada in its comments, the FMVSSs and CMVSSs are
issued under virtually identical statutes that were enacted over thirty
years ago. The
[[Page 50281]]
two statutory schemes both require manufacturers to certify that their
vehicles comply with all applicable safety standards in effect at the
time of manufacture and employ similar enforcement schemes. Both sets
of standards are performance based, based on research and data, and
generally do not dictate a particular design, although they may have
the effect of prohibiting certain designs. NHTSA and Transport Canada,
the Canadian regulatory agency tasked with implementing and enforcing
its vehicle safety act, work closely in researching the causes and
potential means of addressing deaths and injuries related to motor
vehicle crashes.
In 1984, the Department of Transportation and Transport Canada
signed Addendum 5, Traffic and Motor Vehicle Safety Research (Addendum
5), to the existing Memorandum of Understanding between Transport
Canada and the United States Department of Transportation Concerning
Research and Development Cooperation in Transportation (June 18, 1970).
Addendum 5 initially addressed cooperative research activities related
to traffic safety research, crash avoidance research, crashworthiness
research, and road safety data collection and analysis. The results of
these research activities were often used to initiate rulemaking
activities. In the 1996 version of Addendum 5, NHTSA and Transport
Canada agreed to extend the cooperation agreement formally to the
rulemaking activities of the United States and Canada. The two agencies
also agreed to meet at least once a year to review the status of their
respective rulemaking actions, alert the other to rules potentially of
interest, and discuss near-term rulemaking plans. In 2002, NHTSA and
Transport Canada concluded a revision to Addendum 4, which renewed the
cooperation agreement indefinitely in order to ensure continuation of
collaborative activities between the two departments. A copy of
Addendum 5, including all updated versions, has been placed in the
docket.
As a result of both the similar statutory schemes and the
longstanding cooperative relationship between the two regulatory
agencies, as well as the similarity in their physical environments and
population, the FMVSSs and CMVSSs mirror each other in almost all
substantive respects, especially as they apply to heavy trucks and
buses.
NHTSA has evaluated the differences between the FMVSSs and the
CMVSSs that apply to heavy trucks and buses (over 4,536 kg (10,000 lb)
GVWR). We shared our analysis with Transport Canada, which provided
additional feedback. Tables 1 and 2 in the appendix to this document
generally outline the similarities and differences between the two sets
of standards. We believe the efforts of both agencies have identified
all of the significant differences between the two sets of standards as
they apply to these vehicles.
As an initial matter, we note that this analysis is neither a
tentative nor a final determination of functional equivalence. NHTSA
has a formal process that allows for functional equivalence
determinations with the consequence being a change in the standard that
may be utilized by any manufacturer. Rather, today's analysis
recognizes the tremendous similarity between the respective standards.
In most instances, no amendment would be needed. The regulatory
requirements already mirror each other. In some instances, minor
differences exist and a series of minor changes to the FMVSS would be
required in order for us to determine that the respective standards are
functionally equivalent. We have decided against such an approach.
Rather, we believe that the manufacture or retrofitting of vehicles in
compliance with either the FMVSS or CMVSS ensures sufficient adequate
design integrity to meet the safety concerns posed by the operation of
commercial motor vehicles on the nation's highways as long as the
vehicles also meet all FMCSRs.
Given the similarities between the two sets of standards and the
existing manufacturer compliance practices, it is neither difficult nor
impermissible for a commercial motor vehicle certified to the CMVSSs to
meet the substantive requirements of the FMVSSs. We have identified 14
FMVSS/CMVSS pairs of standards that have differences. Most of these
have only minor differences in performance values, with Canadian
requirements that are at least as stringent as, and possibly stricter
than, the corollary requirements in the FMVSSs. For example, one of the
Canadian standards, CMVSS No. 301.1, has no U.S. counterpart, while
another, CMVSS No. 301.2, has broader applicability than the corollary
FMVSS Nos. 303 and 304.
The differences between Canadian standards and other U.S. standards
like FMVSS Nos. 101, 105, and 121 relate solely to information on the
instrument panel. These are designed to relay specific information to
the vehicle operator and may be based on the customs and practices of
the respective countries. We believe these differences do not have any
consequence so long as the vehicle operator is familiar with the
vehicle. Indeed, NHTSA and Transport Canada are involved in a
harmonization effort that would eliminate most of these differences.
The remaining differences are not likely to pose safety problems.
Portions of FMVSS No. 108 (reflective tape on trailers and allowance of
European head lamps) and FMVSS Nos. 223 and 224 (underride prevention)
have no Canadian counterpart. However, according to the CTEA, all
Canadian trailers entering the United States already meet the
applicable underride requirements of FMVSS Nos. 223 and 224 because of
the underride requirements in the FMCSRs. Similarly, while CMVSS No.
108 allows single-colored reflective tape on trailers, the Canadian
trailers used in the cross-border trade meet the requirements of FMVSS
No. 108, in part because of the requirement in the FMCSRs that they do
so. Finally, the TMA polled its Canadian members and has determined
that no Canadian truck manufacturers are using European headlamps, even
though the standard allows them. Communications submitted by CTEA
documenting these statements have been placed in the docket.
As a result of our analysis, we have determined that allowing
commercial motor vehicles certified to the Canadian motor vehicle
safety standards rather than the U.S. motor vehicle safety standards to
operate in the United States will have no negative safety consequences.
Accordingly, requiring these vehicles to be certified twice, once to
the CMVSSs and then secondarily to the FMVSSs, would impact U.S./Canada
trade and impose requirements on the Canadian motor carriers, both in
terms of cost and access to the U.S. market that cannot be justified.
IV. Impact of a Certification Requirement on Canadian- and Mexican-
Domiciled Commercial Motor Carriers
A. Federal Motor Carrier Safety Regulations
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 Vehicle Safety Act, 49 U.S.C.
30103(a), specifically requires the FMCSRs be fully consistent with the
FMVSSs. The provision does not require FMCSA to adopt all applicable
FMVSSs as FMCSRs. However, if the item of equipment is regulated by the
FMCSRs, then they must do so in a manner consistent with the FMVSSs.
Section 30103(a) states:
[[Page 50282]]
The Secretary of Transportation may not prescribe a safety
regulation related to a motor vehicle subject to subchapter I of
chapter 135 of this title [49 U.S.C. 13501 et seq.] that differs
from a motor vehicle safety standard prescribed under this chapter
[49 U.S.C. Sec. Sec. 30101 et seq.]. However, the Secretary may
prescribe, for a motor vehicle operated by a carrier subject to
subchapter I of chapter 135 [49 U.S.C. 13501 et seq.], a safety
regulation that imposes a higher standard of performance after
manufacture than that required by an applicable standard in effect
at the time of manufacture.
Because of the cross-reference in the Vehicle Safety Act to 49
U.S.C. 13501, et seq., foreign-domiciled commercial motor vehicles
engaged in interstate commerce are already subject to requirements
based on most of the FMVSSs applicable to heavy trucks and buses. In
most instances, the FMCSRs directly cross-reference the applicable
portions of the FMVSSs that apply to the regulated vehicles. Further,
the FMCSRs require that all motor carriers operating in the United
States maintain much of the safety equipment and features that NHTSA
requires vehicle manufacturers to install.
In the case of many manufacturing standards, for example where a
compliance symbol is placed on the piece of equipment, a visual
inspection is sufficient to verify compliance. With respect to other
manufacturing standards, most notably the braking standards, a roadside
inspection cannot tell the inspector whether the safety equipment, as
originally manufactured, was effective enough to have actually complied
with the applicable FMVSS. In these instances, however, the operating
standard itself is designed to ensure that the motor vehicle is
currently operating in a safe condition. Indeed, many of these types of
standards involve aspects of motor vehicle performance that do not
remain constant over the life of the vehicle. Thus, some FMCSRs address
the current operational safety of components which wear over the life
and use of the vehicle, while others cross-reference FMVSSs to ensure
that required equipment is in place and maintained. In this way, the
FMVSSs and FMCSRs comprise a consistent and mutually-supportive set of
regulations, as intended by Congress in the Vehicle Safety Act.
B. Canadian-Domiciled Commercial Motor Vehicles
1. Volume of the U.S.-Canadian Cross-Border Trade
Canada and the U.S. have the largest bilateral trade relationship
in the world, with the vast majority of goods exported from each
country being carried via commercial motor vehicles (65% for Canada,
80% for U.S.). According to Canada, this trade generates 13 million
truck trips across the U.S.-Canadian border annually, and represents
more than 25% of the Canadian for-hire trucking revenues.
Industry representatives have proffered similar figures. According
to the Canadian Trucking Association (CTA), the total merchandise trade
between the U.S. and Canada is valued at almost $600 billion (2001
dollars). Typically about 70%, by value, of that trade is carried by
truck, leading to more than 13 million truck trips across the U.S.-
Canadian border. Trade by truck is crucial to maintaining shippers'
just-in-time delivery schedules. CTA estimates that approximately
70,000 (out of 225,000) Canadian truck drivers enter the U.S. each
year.
Canada contended that the proposed rules would make it impossible
for many Canadian motor carriers to operate in the U.S. The small
fleets and owner-operators (more than 50% of the Canadian carriers)
would be the most substantially impacted.
2. Impact of the Proposed Rules on Canadian Motor Carriers
The Canadian fleets are not segregated into ``domestic'' or
``international'' equipment. Accordingly, the CTA argued that, from a
practical standpoint, all Canadian vehicles would have to be
retroactively certified and fitted with a FMVSS label in addition to
the existing CMVSS label if the proposed labeling requirement were
adopted. We agree that, if true, that would constitute a significant
burden on the Canadian fleet.
TMA claimed that the vast majority of carriers that would seek
retroactive certification under the proposed policy statement would be
domiciled in Canada rather than Mexico. It noted that in 2000 there
were approximately 700,000 heavy commercial motor vehicles (greater
than 10,000 lb GVWR) registered in Canada. Since 87% of Canada's
merchandise trade is with the U.S. and most of this merchandise is
transported to the U.S. in commercial motor vehicles, a large portion
of these 700,000 vehicles would need to be retroactively certified.
According to TMA, retroactive certification for such a large number of
vehicles would be both costly and time-consuming. Since these vehicles
are already certified to the substantially similar CMVSSs and are
already operating in the U.S. without a U.S. certification label, TMA
argued that the increase in safety benefits that result from
retroactive certification would be minimal at best.
TMA also noted that NHTSA, in proposing to place a definition of
the term ``import'' in the CFR, did not offer any data indicating that
the Canadian vehicles currently operating in the U.S. are unsafe.
Accordingly, they suggested there is no safety need for the proposed
regulation. Additionally, TMA and CTA argued that the most important
influence on in-use vehicle safety is the level and quality of
maintenance, driver performance, and the environment in which the
vehicle is operated. The FMVSSs do not address the condition of a
vehicle after it has been sold and put into service.
Canada also argued that complying with the certification
requirements after-the-fact would be very difficult and costly, and, in
many instances, impossible. Because the useful life of a commercial
motor vehicle (particularly trailers) is well in excess of the Canadian
5-year record retention requirement, retroactive certification would,
in many cases, be impossible. Additionally, many manufacturers have
indicated to the Canadian government that they would not retroactively
certify their vehicles. To the extent they were willing and able to
retrofit these vehicles, they would pass the cost of certification onto
the carrier. According to CTA, the cost of retroactive certification is
impossible to determine. However, assuming the cost would be $1,000 per
vehicle,\3\ Canadian motor carriers would have to spend at least $250
million to comply with a FMVSS label requirement and would lose the
valuable use of their vehicles while they are being certified.
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\3\ CTA's cost estimate was premised on the following
assumptions:
Each and every piece would have to be taken out of service for a
period of time; returned to the manufacturer of deliverer to a
registered importer; receive certification; and then returned to the
vehicle fleet. Depending on the length of time required, the motor
carrier may have to lease replacement equipment. Presumably
manufacturers, and certainly registered importers, would charge a
fee for service.
CTA further argued that ``since carriers do not segregate their
fleet into `domestic' and `international' equipment, from a
practical standpoint, all equipment in fleets with cross-boarder
operations would fall under the proposed labeling requirements.''
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3. Safety Record of Commercial Motor Vehicles Selected for Inspection
According to data collected by the FMCSA, concerning the out-of-
service rates of commercial motor vehicles selected for roadside
inspection in this country, Canadian commercial motor vehicles appear
to have a lower out-of-service rate than do U.S.-domiciled commercial
motor vehicles. These data are shown in the table below. It is
[[Page 50283]]
important to note that the roadside inspection data are not
statistically representative of all commercial motor vehicles, since
States typically select commercial motor vehicles for inspection based
upon the operating motor carrier's safety record, as well as indicators
of potential safety problems noted when a vehicle enters an inspection
facility. Thus, FMCSA and State inspectors focus their inspections on
vehicles thought to have an above average likelihood of having safety
problems. Further, the number of inspections performed on Mexico-
domiciled commercial motor vehicles, particularly long-haul commercial
motor vehicles, is a minute fraction of the total. Virtually all of the
``Mexico--all'' inspections were performed on short haul drayage
operations during which Mexican-domiciled vehicles enter the U.S. not
farther than the commercial zone along the border. Those vehicles are
typically older than the Mexican-domiciled vehicles used in long haul
operations.
Out-of-Service Rates by Country of Domicile
----------------------------------------------------------------------------------------------------------------
Percentage
Vehicle of total
Total number Vehicle inspections vehicle
of vehicle inspections with an out- inspections
inspections with a FMCSR of-service with an out-
violation violation of-service
violation
----------------------------------------------------------------------------------------------------------------
FY 1999:
All inspected vehicles.............................. 1,387,236 935,453 316,546 22.8
Canada.............................................. 33,655 18,496 4,766 14.2
Mexico--long haul................................... 19,695 17,362 8,165 41.5
Mexico--all......................................... 38,236 33,544 15,294 40.0
U.S................................................. 1,315,345 883,413 296,486 22.5
FY 2000:
All inspected vehicles.............................. 1,488,023 1,002,187 329,659 22.2
Canada.............................................. 38,207 21,668 5,407 14.2
Mexico--long haul................................... 23,275 19,900 8,948 38.4
Mexico--all......................................... 51,202 43,233 18,772 36.7
U.S................................................. 1,398,614 937,286 305,480 21.8
FY 2001:
All inspected vehicles.............................. 1,610,780 1,114,754 356,191 22.1
Canada.............................................. 40,276 23,474 5,538 13.8
Mexico--long haul................................... 25,175 21,569 9,046 35.9
Mexico--all......................................... 64,892 54,806 21,901 33.7
U.S................................................. 1,505,612 1,036,474 328,752 21.8
FY 2002:
All inspected vehicles.............................. 1,712,628 1,158,576 356,091 20.8
Canada.............................................. 62,344 31,365 6,883 11.0
Mexico--long haul................................... 27,702 23,484 8,557 30.9
Mexico--all......................................... 89,566 73,750 24,525 27.4
U.S................................................. 1,560,718 1,053,461 324,683 20.8
FY 2003:
All inspected vehicles.............................. 1,771,845 1,194,709 383,427 21.6
Canada.............................................. 55,439 27,642 6,890 12.4
Mexico--long haul................................... 29,052 23,952 7,375 25.4
Mexico--all......................................... 137,211 113,155 32,031 23.3
U.S................................................. 1,579,195 1,053,912 344,506 21.8
FY 2004:
All inspected vehicles.............................. 1,905,244 1,286,227 423,742 22.2
Canada.............................................. 58,960 30,425 8,161 13.8
Mexico--long haul................................... 12,799 9,452 3,079 24.1
Mexico--all......................................... 150,378 123,268 34,665 23.1
U.S................................................. 1,695,906 1,132,534 380,916 22.5
FY 2005: *
All inspected vehicles.............................. 912,693 619,794 177,988 19.5
Canada.............................................. 27,092 14,313 3,243 12.0
Mexico--long haul................................... 5,106 3,396 918 18.0
Mexico--all......................................... 88,159 71,560 15,367 17.4
U.S................................................. 797,442 533,921 159,378 20.0
----------------------------------------------------------------------------------------------------------------
* Inspections through April 21, 2005.
C. Mexican-Domiciled Commercial Motor Vehicles
Our understanding is that the commercial motor vehicles
manufactured in Mexico are produced either by subsidiaries of American
companies such as Freightliner and International, or by the European-
based company Scania. There are currently significant differences
between the applicable manufacturing standards of the United States and
the European Union. It is unlikely that a vehicle built by a European
manufacturer to the European standards would have all the safety
equipment needed to comply with either the FMCSRs or the FMVSSs.
However, according to information provided by the TMA, U.S.
manufacturers or their affiliates provide the majority of the heavy
trucks domiciled in Mexico.\4\ According to the
[[Page 50284]]
TMA,\5\ U.S. manufacturers have been building their Mexican-domiciled
vehicles in conformity with the FMVSSs since the mid to late 1990s, and
over 50,000 U.S.-certified heavy trucks have been sold in the Mexican
market since 1993. KenMex, a subsidiary of Paccar Inc., began affixing
U.S. certification labels to all vehicles built for the Mexican market
that met all applicable U.S. safety standards in that year.
International, Freightliner, and Volvo began certifying most or all of
their vehicles to the FMVSSs in 1996, 1997, and 1998, respectively. TMA
estimates that approximately 4,500 additional heavy trucks produced by
these manufacturers were built in accordance with then applicable U.S.
safety standards, although not labeled as such.\6\
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\4\ The rest are either produced by Scania or are built in two
or more stages, with the chassis manufactured by a U.S. manufacturer
and a Mexican final stage manufacturer completing the manufacturing
process. It is doubtful that any of these vehicles would or could be
certified to the FMVSSs.
\5\ A letter from TMA providing a breakdown of the Mexican heavy
truck market is in the docket. Docket NHTSA-2004-11593-22.
\6\ We believe that the vast majority of Mexican-domiciled
vehicles engaged in U.S. long haul traffic either carry the label or
were originally built to then applicable U.S. standards. Those
potentially not originally built to U.S. standards are generally
used only in the short haul drayage operation within the commercial
zone. As noted earlier, FMCSA and state inspections currently focus
on these vehicles.
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The information provided by TMA members provides sufficient
assurance that a substantial number of Mexican-domiciled vehicles
originally built to the Federal motor vehicle safety standards will be
able to engage in cross-border trade between the U.S. and Mexico.
V. FMCSA's Enforcement Policy
After carefully reviewing the comments filed in response to the
FMCSA and NHTSA proposals, including the potential for fraud that was
noted in the proposals, the Department has developed a more effective
approach for ensuring that commercial motor vehicles were built to the
FMVSS (or the very similar Canadian motor vehicle safety standards) and
operate safely in the United States. Rather than relying on retroactive
labelling, FMCSA is continuing and reinforcing its program focused on
operational safety requirements applicable to current conditions.
First, FMCSA requires Mexican-domiciled carriers applying to
operate in the United States to certify in their applications that
their vehicles were manufactured or retrofitted in compliance with the
FMVSSs applicable at the time they were built. False certification
subjects the carrier to suspension or revocation of its license to
operate in the United States. (49 CFR Part 365)
Second, enforcement through the Federal Motor Carrier Safety
Regulations focuses on real world, operational safety and incorporates
the various FMVSS applicable through the useful life of the vehicle.\7\
FMCSA will continue to focus on assessing compliance with the FMCSRs,
including those regulations that cross reference the FMVSSs (e.g.,
lamps and reflectors, air brake systems [including antilock brake
systems], rear impact guards on trailers, conspicuity treatments on
truck tractors and trailers, emergency exits on buses, etc.).
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\7\ We note that a label certifying compliance with performance
standards applicable to lights, brakes and other wear items does not
ensure real world safety in the absence of the FMCSRs, especially
with regard to vehicles built many years ago. The American public is
better protected by the FMCSRs than solely through a label
indicating that a commercial motor vehicle had originally been built
to certain manufacturing performance standards.
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Third, FMCSA may use Vehicle Identification Numbers (VINs) coupled
with VIN information obtained from vehicle manufacturers, as well as
other available information, when necessary to check whether vehicles
were originally built to the FMVSSs.
We have concluded that the incorporation of numerous FMVSS into the
FMCSRs, combined with the various certification and inspection
procedures being adopted by FMCSA, will better ensure the operational
safety of commercial motor vehicle on the public roads than a program
of retroactive certification potentially fraught with fraud.
Accordingly, we have determined that the regulatory scheme proposed in
March 2002 would serve no meaningful safety function and are
withdrawing the proposal for retroactive certification and record
keeping.
VI. NHTSA's Interpretation of the Import Prohibition in the Vehicle
Safety Act
In addition to proposing a regulatory scheme of retroactive
labelling, the agency proposed including in the Code of Federal
Regulations a definition of the word ``import'' based on a 1975
interpretive memo. The word ``import'' appears in 49 U.S.C. 30112,
which prohibits a motor vehicle from being placed into interstate
commerce or imported into the U.S. unless it is certified as complying
with the FMVSS applicable at the time. NHTSA operates an extensive
Registered Importer program to ensure that vehicles imported for sale
and permanent use in the U.S. comply with this requirement. The
question here is whether the word ``import,'' as used in this statute,
necessarily applies to commercial motor vehicles that may be used
temporarily in the United States and that are subject to an alternative
regulatory program designed to ensure the vehicles operate safely on
the U.S. roads.
After reviewing the various comments, all of which raised concerns
regarding the practical application of the proposed definition of the
term ``import'' as used in the Vehicle Safety Act, we decided to re-
examine some of the basic assumptions made in the three documents that
supported the agency's 1975 interpretation. We have delved more
thoroughly into the language of the entire Vehicle Safety Act, as well
as Congress' intent vis-[aacute]-vis the treatment of commercial motor
vehicles under the Act. Additionally, we decided to reevaluate the
existing case law relevant to the use of the term ``import'' outside of
the context of tariff law to see whether and how other statutes define
the term. Finally, we looked at additional factors and in additional
contexts that were not considered in developing the 1975
interpretation. We believe the term ``import'' is subject to various
interpretations, of which the agency's 1975 interpretation is but one.
We do not believe it is the only reasonable interpretation.
Accordingly, based on the comments we have received, and our research
and evaluation, we have decided against adding a definition of the term
in the Code of Federal Regulations, and we have decided to withdraw the
agency's 1975 interpretation.
A. NHTSA's 1975 Interpretation
The proposed interpretive rule was based, in large part, on the
analyses contained in the 1975 letter from NHTSA's Administrator, James
Gregory, to the Canadian Trucking Association (1975 letter) and in an
internal 1975 legal memorandum that preceded that letter. (The 1975
letter and memorandum were placed in the docket for the NPRM.) Both the
1975 letter and the legal memorandum concluded that entrances of
Canadian-domiciled commercial motor vehicles into the United States
were importations under the Vehicle Safety Act and were not subject to
any exceptions under that Act. The letter was issued in response to a
request by the Canadian Trucking Association that Canadian-domiciled
commercial motor vehicles be excluded from the requirements of FMVSS
No. 121, Air brake systems. At the time, Canada did not have a
corollary standard.
[[Page 50285]]
In concluding that Canadian vehicles were imports within the
meaning of the Vehicle Safety Act, the agency interpreted the term
``import'' in the former section 108(a)(1) of the Act (now codified at
49 U.S.C. 30112(a)(1)) when read in conjunction with the exemptions
provided in section 108(b)(4). Section 108(a)(1) stated that:
No person shall manufacture for sale, sell, offer for sale, or
introduce or deliver for introduction in interstate commerce, or
import into the United States, any motor vehicle or item of motor
vehicle equipment manufactured on or after the date any applicable
Federal motor vehicle safety standard takes effect under this title
unless it is in conformity with such standard except as provided in
subsection (b) of this section.
Section 108(b)(3) stated that motor vehicles or equipment offered
for importation in violation of section 108(a)(1) would be refused
admission into the United States under joint regulations to be issued
by the Secretary of Treasury and the Secretary of Commerce. Under an
exception in section 108(b)(3), those regulations could authorize
imports as long as the vehicles were subsequently brought into
conformity with all applicable safety standards, but otherwise the
vehicles would have to be exported or abandoned to the United States.
The exception did not specify that the regulations only address those
vehicles imported for sale or resale, although it is unlikely that
anyone would so modify a vehicle unless it were to be permanently
domiciled in the United States. Section 108(b)(4) authorized the
issuance of joint regulations that would permit the temporary
importation of used motor vehicles.\8\
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\8\ As explained in the House Report on the Act, the purpose of
section 108(b)(4) was to ``accommodate foreign tourists who may
bring their vehicles with them on visits to this country and also to
permit import of certain vehicles for diplomatic use. H. Rep. 1776,
89th Cong., 2d Sess., p.24.
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The agency noted that the exceptions for non-complying imports in
section 108(b)(3) of the Act and temporary importation of personal
vehicles in section 108(b)(4) of the Act would not be needed if
foreign-domiciled vehicles that were not sold in the United States were
not considered imports under section 108(a). The language of the
exceptions is the strongest evidence that Congress intended the term
``import'' to apply to all vehicles brought into the United States.
In our NPRM proposing the formal adoption of the 1975
interpretation, we relied on what we then believed was a ``plain
meaning'' of the term when considered in conjunction with the overall
purpose of the Vehicle Safety Act, relying exclusively on the analysis
proffered in 1975. We did not revisit the original analysis of whether
the Vehicle Safety Act was in fact akin to the statutes underlying the
cases relied on in issuing the original interpretation, or whether
other analyses might be more applicable.
B. Possible Alternative Interpretations of the Import Prohibition
The term ``import'' in a statute may be interpreted differently
based upon the intent of Congress in using the term. When Congress does
not specifically define a particular term, its meaning should be
construed in such a way as to further the goals that Congress was
seeking to achieve when enacting the law. See Barnhart v. Walton, 122
S. Ct. 1265,1270 (2002); United States v. Haggar Apparel Co., 526 U.S.
380,392, 119 S. Ct. 1392, 1398 (1999), citing Nations Bank of N.C.N.A.
v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S. Ct. 810,
813-814 (1995). Congress' stated goal in enacting the Vehicle Safety
Act was ``to reduce traffic accidents and deaths and injuries resulting
from traffic accidents. 49 U.S.C. 30101.
The statute should not be viewed in isolation, but rather in
conjunction with other, relevant statutes. See Kokoszka v. Belford, 417
U.S. 642, 650, 94 S.Ct. 2431, 2436 (1974), citing Brown v. Duchesne, 60
U.S. 183, 194 (1856). Commercial motor vehicles are subject to
regulation under both the Vehicle Safety Act (codified as 49 U.S.C.
Chapter 301, Motor Vehicle Safety) and 49 U.S.C. Chapter 311,
Commercial Motor Vehicle Safety. One of the Congressionally stated
purposes for Chapter 311, Subchapter III, Safety Regulation, is ``to
promote the safe operation of commercial motor vehicles.'' 49 U.S.C.
31131(a). The Federal Motor Carrier Safety Administration implements
this statute in large part through enforcement of the Federal Motor
Carrier Safety Regulations.
In the NPRM, the agency referred to a dictionary definition of the
word ``import,'' 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). The dictionary also defines the term as ``the
act of importing or bringing in; importation, as of goods from
abroad.'' Black's Law Dictionary also provides slightly differing
definitions: ``a product brought into a country from a foreign country
where it originated'' versus ``the process of bringing foreign goods
into a country'' (Black's Law Dictionary, Seventh Edition, 1999).
1. Import--Illegal Goods Definition
Courts have broadly defined the term ``import'' in cases involving
prohibited products that the government has seized. An example is
Cunard v. Mellon, 262 U.S. 100 (1929), the case primarily relied upon
by NHTSA in its 1975 analysis as supporting its ``plain language''
approach. The case addressed an interpretation of the National
Prohibition Act, which prohibited the manufacture, sale and
transportation, importation, and exportation of alcohol in or from any
U.S. territory other than direct transport through the Panama Canal
Zone. The statute was enacted in response to passage of the Eighteenth
Amendment. The Court determined that the National Prohibition Act's
criminal prohibition on bringing alcohol into the United States
(including its territorial waters) required a broad definition of the
term ``import'' as used in the statute, since such a reading ``better
comports with the object to be attained,'' i.e., the total ban on
alcoholic beverages in the United States other than those liquors
``obtained before the act went into effect and kept in the owner's
dwelling for use therein by him, his family, and his bona fide
guests.''
Similar analysis can be found in more recent cases interpreting the
criminal prohibition on ``importation'' of controlled substances (e.g.,
heroin, morphine, and cocaine), where ``import'' is expressly and
broadly defined by statute as ``any bringing in or introduction of such
article into any area (whether or not such bringing in or introduction
constitutes an importation within the meaning of the tariff laws of the
United States).'' \9\ (21 U.S.C. 951 et seq.) (See generally, U.S. v.
Catano, 553 F.2d 497 (5th Cir. 1975); U.S. v. Lewis, 676 F.2d 508 (11th
Cir. 1982); and U.S. v. Perez, 776 F. 2d 759 (9th Cir. 1985).)
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\9\ See also, 16 U.S.C. 1151, et seq., generally prohibiting
importation, sale, or possession of North Pacific fur seal skins; 16
U.S.C. 1531, et seq., generally prohibiting importation, sale, or
possession of endangered fish and wildlife; and 16 U.S.C. 2401, et
seq., generally prohibiting importation, sale, or possession of
birds, mammals, or plants native to Antarctica, where ``import'' is
defined by statute as bringing into the jurisdiction of the United
States, regardless of whether such act constitutes an importation
within the meaning of customs law.
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2. Import--Definition Used in Determining Whether an Item Brought Into
the U.S. Is Subject to Tariff
Since 1926, courts have consistently held that in tariff cases,
unless it clearly appears that Congress intended
[[Page 50286]]
otherwise, the term ``importation'' means the bringing of goods within
the jurisdictional limits of the U.S. with the intent to unlade.
However, the courts have held that this definition is not literally
applicable to a seagoing vessel or yacht entering the United States
under its own power. Instead, they have given deference to a Treasury
Department ruling cited in Estate of Lev H. Prichard v. United States,
43 CCPA 85, 87-88, CAD 612 (1956), which stated that ``if coming into
this country temporarily as carriers of passengers or merchandise, they
[vessels] are not subject to customs entry or the payment of duty, but
if brought into the United States permanently they are to be considered
and treated as imported merchandise.'' The court said that the question
as to whether a vessel is brought into the United States
``permanently'' must be determined on the basis of intent. (See
generally, American Customs Brokerage Co., Inc. v. United States, 375
F.Supp. 1360, 1366 (C.C.P.A., 1974).)
3. Import--Use of Tariff Definition in Non-Tariff Context
A third alternative is that contained in the Harmonized Tariff
Schedule of the United States (HTSUS), even though the underlying
statutory concern is not tariff-related. In 1999, the Environmental
Protection Agency (EPA) took this approach in a final rule establishing
an emission control program for certain new marine diesel engines
pursuant to the Clean Air Act (64 FR 73300, December 29, 1999). The
final rule is codified at 40 CFR Part 94. One of the issues addressed
by the final rule was how the application to ``new marine engines''
would affect the engines on foreign vessels that were engaged in
international trade. The EPA specified that, with respect to imported
engines, ``new marine engine'' means an engine that is not covered by a
certificate of conformity at the time of importation, and that was
manufactured after the starting date of the emission standards which
are applicable to such engine (or which would be applicable to such
engine had it been manufactured for importation into the United
States). It then specified prohibitions against certain acts by all
persons with respect to the engines covered by the regulation.\10\
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\10\ 40 CFR Part 94, Subpart I allows for some temporary
importations with specified bond requirements (see 40 CFR 94.804).
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For the purposes of determining what constitutes an importation
within the ``new marine engine'' definition, and consequently an
importation under the prohibition, the EPA decided to adopt the
approach contained in the HTSUS. Under the HTSUS, vessels used in
international trade or commerce and personal pleasure craft brought
into the territorial United States by non-residents are admitted
without formal customs consumption entry or the payment of a duty. EPA
said that its approach was consistent with the Treasury Department
ruling cited in Prichard discussed above. (See discussion at 64 FR
73300, 73302.) \11\
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\11\ The Environmental Protection Agency (EPA) recently
considered whether it should amend its interpretation of ``new
marine engines'' to include engines in foreign-flag vessels,
regardless of whether the presence of those vessels in U.S. ports
would be treated as an import under HTSUS. Proposed rule; 67 FR
37548; May 29, 2002. It expressed concerns that the emissions of
foreign-flagged commercial vessels may contribute significantly to
problems in the U.S. since U.S.-flag vessels only account for 6.7%
of all vessels entering U.S. ports. In the final rule, EPA did not
decide whether it had the discretion to interpret new to include
foreign vessels. It indicated that deferring this decision may help
facilitate the adoption of more stringent consensus international
standards, and noted that a new set of internationally negotiated
marine diesel engine standards would apply to engines on all
vessels, regardless of where they are flagged. Final rule; 68 FR
9746, 9759; February 28, 2003. In any event, the circumstances
addressed by EPA, i.e., the application or non-application of a
solitary Federal regulatory program, are not closely analogous to
those before this agency.
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C. Factors Not Considered in the 1975 Interpretation or NPRM
1. U.S. Customs Regulations in Effect in 1966
Neither the documents NHTSA relied upon when proposing an
interpretive rule nor the preamble of that notice addressed the U.S.
Customs regulations in effect when the Vehicle Safety Act was enacted.
The 1963 Tariff Schedule specifically excluded commercial motor
vehicles from entry requirements so long as the vehicles did not engage
in local traffic in the United States.\12\ This exclusion was adopted
as part of the implementation of the Tariff Act of 1930, which provided
that ``vehicles and other instruments of international traffic, of any
class specified by the Secretary of the Treasury, shall be granted the
customary exceptions from the application of customs laws to such
extent and subject to terms and conditions as may be prescribed in
regulations or instructions of the Secretary of the Treasury.'' (19
U.S.C. 1322(a)). Because the foreign-domiciled commercial motor
vehicles were not subject to entry under the existing Tariff Schedule
when the Vehicle Safety Act was passed, any prohibition on allowing
non-compliant commercial motor vehicles into the United States could
not be enforced at the border without significantly amending those
regulations in a manner inconsistent with the Tariff Act of 1930.\13\
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\12\ The prohibition against engaging in local traffic was the
result of cabotage laws in effect at the time. These laws were
designed to prevent foreign carriers from engaging in the purely
domestic transport of goods or passengers. Corollary laws applied to
foreign-owned railroads, airlines and merchant vessels.
\13\ U.S. Customs regulations currently provide that trucks,
buses and other vehicles in international traffic shall be subject
to the treatment specified in part 123 (19 CFR 10.41(a)), and that
they may be admitted without formal entry or the payment of duty (19
CFR 123.14(a)).
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2. Treatment of Canadian-Domiciled Commercial Motor Vehicles
None of the three previous NHTSA documents addressed the fact that
throughout all the different legislative activities addressing vehicles
brought into the United States, Canadian-domiciled commercial motor
vehicles were allowed to operate in the cross-border trade without
being subject to formal entry. In 1966, when the Vehicle Safety Act was
enacted, both the Mexican and Canadian borders were open. In 1988, when
Congress passed the Imported Vehicle Safety Compliance Act of 1988, the
Canadian border was open. In 2001, when the Murray-Shelby provisions of
the 2002 DOT Appropriations Act were enacted, the Canadian border was
open.\14\ None of the legislative histories of any of these statutes
indicate intent on the part of Congress to change the operating status
of the Canadian motor carriers, even though there was no basis to
believe the foreign-domiciled commercial motor vehicles were fully
compliant with the requirements of all applicable FMVSSs.
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\14\ In 1988 and 2001, the Mexican border was open to Mexican-
domiciled carriers operating only in the border zones and to such
carriers that had obtained authority to operate beyond the border
zones before the imposition of the 1982 moratorium.
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We have been unable to determine how many Mexican- and Canadian-
domiciled motor carriers were operating in the trans-border trade when
the Vehicle Safety Act was initially enacted, although the specific
reference to these vehicles in the 1963 Tariff Schedule (28 FR 14663,
December 31, 1963) indicates that at least some foreign-domiciled
commercial motor vehicles were being used to transport cargo and
passengers to and from the United States.
According to the statistics gathered by Transport Canada \15\
regarding international carrier activities in 1984, a total of 941
Canadian motor carriers
[[Page 50287]]
were engaged in the U.S.-Canada cross-border trade at that time. These
carriers owned or operated, in the aggregate, 72,441 commercial motor
vehicles. Thus, when Congress amended the Vehicle Safety Act in 1988 to
address specifically concerns it had with the importation of non-
compliant motor vehicles, the United States and Canada enjoyed an
active trade relationship in which shipping via commercial motor
vehicles clearly played a major role. Yet the legislative history
associated with the 1988 amendments never raises the prospect that
Congress was concerned about whether the Canadian commercial motor
vehicles posed a safety risk while operating in the United States.
Certainly Congress would have been aware that at least some percentage
of goods imported to the United States from Canada were transported via
truck, since President Reagan had lifted the Congressional moratorium
on grants of new operating authority for Canadian carriers as recently
as December 1982.
---------------------------------------------------------------------------
\15\ Statistics Canada, Trucking in Canada, 1984, Minister of
Supply and Services Canada, 1986, table 2.7.
---------------------------------------------------------------------------
3. FY 2002 DOT Appropriations Act
Finally, as noted by the comments on this rulemaking, by 2001, when
the provisions of the 2002 DOT Appropriations Act governing Mexican
motor carriers were enacted, the United States and Canada enjoyed the
largest trading relationship in the world, with most of the cargo
coming into the United States via commercial motor vehicles that were
not certified as compliant with the FMVSSs. Indeed, the concern over
compliance with all applicable FMVSSs was not raised during the debates
and hearings on the safety of Mexican commercial motor vehicles.
Rather, Congress' stated concern was with the level of maintenance of
the Mexican vehicles.
Based on consideration of both the factors addressed by the
previous documents interpreting the term ``import,'' as well as the
other factors articulated above, we have determined that the agency's
previous interpretation of the importation restriction on non-certified
foreign-domiciled commercial motor vehicles may be overly encompassing
and place unreasonable restrictions on foreign-based motor carriers.
Unlike statutes related to the regulation and control of narcotics, the
Vehicle Safety Act does not require, or even allow, NHTSA to eliminate
entirely the possibility of motor vehicle crashes in this country.
While the agency was directed to establish motor vehicle safety
standards, those standards must be practicable (both technically and
financially) and must meet the need for motor vehicle safety (49 U.S.C.
30111). Additionally, the Vehicle Safety Act does not directly regulate
used vehicles. The authority rests with the states, subject to the
Vehicle-in-Use Inspection Standards (49 CFR Part 570). Likewise, while
the Vehicle Safety Act prohibits motor vehicle repair businesses from
making required safety equipment inoperative (49 U.S.C. 30122), it does
not prohibit individuals from modifying their own vehicles in whatever
manner they choose.
Additionally, unlike the narcotics laws, possession of non-
compliant motor vehicles has never been illegal. Indeed, section
108(b), as originally enacted, provides for several circumstances under
which the sale, delivery, introduction, or importation of non-compliant
vehicles are not prohibited. As noted above, there is no prohibition
against the sale, offer for sale, or introduction or delivery of non-
compliant used motor vehicles. The prohibition does not apply to
vehicles that are imported into the U.S. pursuant to joint regulations
issued by Customs and NHTSA. Finally, it does not apply to vehicles
labeled for export. The 1988 amendments further expanded the number of
exceptions to the general prohibition by adding an exemption for
vehicles that are at least 25 years old.
The NPRM was proposed to provide context to the proposals for
retroactive certification and record keeping. These proposals did not
consider whether, as we have learned through the benefit of notice and
comment rulemaking, alternative approaches can better serve the
nation's safety needs. The FMCSA's program of enforcing its on-the-road
operational standards, combined with the processes it is establishing
to check that vehicles were originally built to then applicable U.S.
standards, satisfies the stated Congressional concern over the
maintenance of Mexican trucks better than any program of retroactive
labelling.
The NPRM proposing to add to the Code of Federal Regulations a
definition of ``import'' relied heavily on the 1975 memo and added
little analysis. We did not consider whether the overall regulatory
scheme applicable to commercial motor vehicles would alter our
conclusory statement about the purposes of the Vehicle Safety Act, nor
whether it should affect our proclamation that such vehicles are
equivalent to criminally illegal illicit drugs and contraband. The
public comments we received have led us to review and consider more
fully the underlying basis for the 1975 memo, and therefore the NPRM.
Our more thorough and careful review leads us to conclude that the
proposed definitional regulation does not adequately reflect the
current regulatory environment and, in light of FMCSA's program to
ensure operational safety, would provide no additional safety benefit.
Accordingly, we have decided to withdraw the proposed definitional
regulation.
We also believe it is important to note that while NHTSA issued its
interpretation of the word ``import'' in 1975 in the context of
addressing whether Canadian-domiciled commercial motor vehicles
operating in the United States must meet the requirements of NHTSA's
safety standard on air brake systems, as a practical matter NHTSA has
never required vehicles with CMVSS labels to also carry FMVSS labels.
Indeed, the comments indicate that the primary burdens associated with
retroactive certification would fall on Canadian-domiciled commercial
motor carriers, which have long been operating safely in the U.S. using
commercial vehicles that were certified to the CMVSS and also met the
FMCSRs.
In practice, NHTSA has generally sought to ensure that non-U.S.-
domiciled commercial motor vehicles meet the same safety standards as
U.S. vehicles (or very similar standards) by other means, especially
working with FMCSA. We note, for example, that in responding to
requests for interpretation in the late 1990's as to whether Canadian
carriers can operate in the U.S. without the antilock brake systems
required by NHTSA's safety standard, NHTSA's responses referred to the
Federal motor carrier safety regulations rather than to our 1975
interpretation.\16\ Also, NHTSA and Transport Canada have a close
working relationship.
---------------------------------------------------------------------------
\16\ See interpretation to Mr. Ted Reiniger, June 2, 1998; to
Mr. Barrie Montague, June 1, 1998.
---------------------------------------------------------------------------
Thus, the approach discussed elsewhere in this document that the
Department will be following for ensuring that commercial vehicles were
built to the FMVSS (or the very similar CMVSS) and operate safely in
the United States is consistent with our longstanding practices.
[[Page 50288]]
Appendix
Table 1.--Comparison of CMVSS and FMVSS Requirements for Trucks and Buses over 4,536 kg (10,000 lb) GVWR
----------------------------------------------------------------------------------------------------------------
Title CMVSS FMVSS Most stringent
----------------------------------------------------------------------------------------------------------------
CMVSS No. 101, Controls and displays. --Requires the ISO --Requires the word Safety difference is
FMVSS No. 101, Controls and displays. brake failure symbol ``brake'' with minimum inconsequential.
if a common brake height if a common
malfunction indicator brake malfunction
is used. indicator is used.
--------------------------------------
CMVSS No. 102, Transmission control No significant differences Safety difference is
functions. inconsequential.
FMVSS No. 102, Transmission shift
lever sequence, starter interlock,
and transmission braking effect..
--------------------------------------
CMVSS No. 103, Windshield defrosting No significant differences Safety difference is
and defogging. inconsequential.
FMVSS No. 103, Windshield defrosting
and defogging systems..
--------------------------------------
CMVSS No. 104, Windshield wiping and No significant differences Safety difference is
washing system. inconsequential.
FMVSS No. 104, Windshield wiping and
washing system..
--------------------------------------
CMVSS No. 105, Hydraulic and electric --Requires statement to --Requires specific Safety differnce is
brake systems. the same effect as working for brake inconsequential.
FMVSS No. 105, Hydraulic and electric U.S. for brake fluid fluid reservoir
brake systems.. reservoir labeling. labeling.
--Requires the ISO ABS --Requires the word
symbol for indicating ``ABS'', ``Anti-lock''
ABS malfunction. or ``Antilock'' with
minimum height for
indicating ABS
malfunction..
--------------------------------------
CMVSS No. 106, Brake hoses........... No significant differences Safety difference is
FMVSS No. 106, Brake hoses........... inconsequential.
--------------------------------------
CMVSS No. 108, Lighting system and --Requires Daytime Allows, but does not --CMVSS on daytime
retro-reflective devices. running lights. require daytime running lights.
FMVSS No. 108, Lamps, reflective --Allows European running lights. --Allowance of European
devices, and associated equipment.. headlamps.. headlamps is a
significant
difference.
--------------------------------------
CMVSS No. 111, Mirrors............... No significant differences Safety difference is
FMVSS No. 111, Rearview mirrors...... inconsequential.
--------------------------------------
CMVSS No. 113, Hood latch system..... No significant differences Safety difference is
FMVSS No. 113, Hood latch system..... inconsequential.
--------------------------------------
CMVSS No. 116, Hydraulic brake fluids No significant differences Safety difference is
FMVSS No. 116, Motor vehicle brake inconsequential.
fluids..
--------------------------------------
CMVSS No. 119, Tires for vehicles Requires maple leaf Requires DOT marking... Saftey difference is
other than passenger cars. certification marking. inconsequential.
FMVSS No. 119, New pneumatic tires
for vehicles other than passenger
cars..
--------------------------------------
CMVSS No. 120, Tire selection and No significant differences Safety difference is
rims for vehicles other than inconsequential.
passenger cars.
FMVSS No. 120, Tire selection and
rims for motor vehicles other than
passenger cars..
--------------------------------------
[[Page 50289]]
CMVSS No. 121, Air brake systems..... Requires the ISO ABS Requires the letters Safety difference is
FMVSS No. 121, Air brake systems..... symbol for indicating ``ABS'' or inconsequential.
ABS malfunction. ``Antilock'' with
minimum height for
indicating ABS
malfunction.
--------------------------------------
CMVSS No. 124, Accelerator control No significant differences Safety difference is
systems. inconsequential.
FMVSS No. 124, Accelerator control
systems..
--------------------------------------
CMVSS No. 131, School bus pedestrian No significant differences Safety difference is
safety devices. inconsequential.
FMVSS No. 131, School bus pedestrian
safety devices..
--------------------------------------
CMVSS No. 203, Driver impact Requirement that Requirement that CMVSS.
protection. clothing and jewelry clothing and jewelry
FMVSS No. 203, Impact protection for cannot catch on cannot catch on
the driver from the steering control steering wheel. steering wheel does
system.. not apply to vehicles
of this class.
--------------------------------------
CMVSS No. 205, Glazing materials..... References more recent Only references older Safety difference is
FMVSS no. 205, Glazing materials..... version of ANSI Z26 versions of ANSI Z26. inconsequential.
test requirement, but
allows older versions
to be followed.
--------------------------------------
CMVSS No. 207, Anchorage of seats.... All seats must be Allows separate testing CMVSS.
FMVSS No. 207, Seating systems....... tested as an assembly of seating and seat
of seat and seat base base tested in a test
when installed in fixture.
vehicle.
--------------------------------------
CMVSS No. 208, Occupant protection in All vehicles must have Allows for crash Safety difference is
frontal impact. seat belt. testing in lieu of inconsequential.
FMVSS No. 208, Occupant crash seat belts in vehicles
protection.. over 4,536 kg.
--------------------------------------
CMVSS No. 209, Seat belt assemblies.. --Includes a ....................... Safety difference is
FMVSS No. 209, Seat belt assemblies.. colorfastness test. inconsequential.
--Requires label
stating seat belt
assembly must be
installed in vehicle
with an air bag if
load limiters are
used..
--------------------------------------
CMVSS No. 210, Seat belt assembly Different requirements Provides an exemption Safety difference is
anchorages. for seat belt from seat belt inconsequential.
FMVSS No. 210, Seat belt assembly anchorage location for anchorage
anchorages.. adjustable seats with installation,
seat travel greater strength, and location
than 70 mm than for requirements if
seats with seat travel certified to unbelted
equal to or less than barrier test in FMVSS
70 mm. No. 208.
--------------------------------------
CMVSS No. 217, Bus window retention, Requires push-out Requires either push- Safety difference is
release and emergency exits. windows on all buses out windows or sliding inconsequential.
FMVSS No. 217, Bus emergency exits other than school windows.
and window retention and release.. buses.
--------------------------------------
CMVSS No. 301.1--LPG Fuel system ....................... No FMVSS corollary..... CMVSS.
integrity.
--------------------------------------
CMVSS No. 301.2--CNG fuel system --Applies to all --Only regulated CMVSS.
integrity. vehicles. vehicles over 4,536 kg
FMVSS No. 303, Fuel system integrity --Fuel container must are school buses.
of compressed natural gas vehicles/ remain attached to --No environmental
FMVSS No. 304, compressed natural vehicle at minimum of testing requirements..
gas fuel container integrity.. one attachment point..
--Adopts environmental
testing requirements
of CSA B51 or ANSI/AGA-
NGV 2..
--------------------------------------
CMVSS No. 302, Flammability.......... No significant differences Safety difference is
FMVSS No. 302, Flammability of inconsequential.
interior materials..
----------------------------------------------------------------------------------------------------------------
[[Page 50290]]
Table 2.--Comparison of CMVSS and FMVSS Requirements for Trucks Trailer Over 4,536 kg (10,000 lb) GVWR
----------------------------------------------------------------------------------------------------------------
Title CMVSS FMVSS Most stringent
----------------------------------------------------------------------------------------------------------------
CMVSS No. 108, Lighting system and --Requires pole Requires red and white --CMVSS on pole
retro-reflective devices. trailers to have reflective tape. trailers.
FMVSS No. 108, Lamps, reflective reflective markings. --FMVSS on reflective
devices, and associated equipment.. --Allows colors of tape.
reflective tape other
than red and white
markings (e.g., all
white or all orange)..
--------------------------------------
CMVSS No. 119, Tire for vehicles Requires maple leaf Requires DOT marking... Safety difference is
other than passenger cars. certification marking. inconsequential.
FMVSS No. 119, Tire for vehicles
other than passenger cars..
--------------------------------------
CMVSS No. 120, Tire selection and No significant differences. Safety difference is
rims for vehicles other than inconsequential.
passenger cars.
FMVSS No. 120, Tire selection and
rims for motor vehicles other than
passenger cars..
--------------------------------------
CMVSS No. 121, Air brake systems..... No significant differences. Safety difference is
FMVSS No. 121, Air brake systems..... inconsequential.
--------------------------------------
FMVSS No. 223, Rear impact guards/ No CMVSS corollary..... Trailers must be FMVSS
FMVSS No. 224, Rear impact equipped with rear
protection. impact guard having
strength requirement
of 100kN and 5.65 kJ
of energy absorption
on one side.
----------------------------------------------------------------------------------------------------------------
Issued on: August 22, 2005.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 05-16968 Filed 8-25-05; 8:45 am]
BILLING CODE 4910-59-P