DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 576
[Docket No. NHTSA 02- 11592; Notice 1]
Recordkeeping and Record Retention
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
SUMMARY: This is one of three documents that NHTSA is issuing as part of efforts by the United States to comply with its obligations under the North American Free Trade Agreement (NAFTA) regarding the access of Mexican-domiciled motor carriers to the United States. The first NHTSA document is a draft policy statement allowing fabricating manufacturers to retroactively certify vehicles they originally manufactured for sale in countries other than the United States. The purpose of the proposed policy statement is to facilitate compliance by Mexico- and Canada-domiciled motor carriers with the National Traffic and Motor Vehicle Safety Act of 1966, recodified at 49 U.S.C. Chapter 301, which provides for the issuance of Federal motor vehicle safety standards (FMVSSs), requires the compliance of motor vehicles (including imported motor vehicles) with those standards, and requires that a label bearing a statement certifying that compliance be attached to each vehicle. The draft policy statement also facilitates compliance with a companion notice of proposed rulemaking by the Federal Motor Carrier Safety Administration (FMCSA). In its document, FMCSA will be proposing to promote the effective enforcement of NHTSA’s statute by requiring that all commercial motor vehicles operating in the United States have labels certifying their compliance with the FMVSSs.
The second NHTSA document proposes an amendment that would define the term "import," as used in the statute. In 1975, NHTSA issued an interpretation stating that the importation prohibition applies to the bringing into the United States of foreign-domiciled commercial vehicles that transport cargo. We are proposing a definition of the term "import" that would codify this interpretation in the Code of Federal Regulations.
This third document proposes to require vehicle manufacturers who retroactively apply compliance certification labels to make and retain records identifying the vehicles they have so certified.
DATES: Comment closing date: You should submit your comments early enough to ensure that Docket Management receives them not later than [FR: Please insert the date 60 days after date of publication of this notice in the Federal Register].
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 10:00 a.m. to 5:00 p.m., Monday through Friday. The Docket is located at the Plaza level of this building, northeast entrance.
FOR FURTHER INFORMATION, CONTACT:
For technical issues: Mr. George Entwistle, Chief, Equipment and Imports Division, Certification Branch, Office of Safety Assurance, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590; telephone (202) 366-5291; telefax (202) 366-1024.
For legal issues: Ms. Rebecca MacPherson, Office of the Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW, Washington, DC 20590; telephone (202) 366-2992; telefax (202) 366-3820.
Table of Contents
A. NAFTA provision for cross border operation of commercial motor vehicles
B. Steps to provide for the safe implementation of the NAFTA provision for cross border operation of commercial motor vehicles
II. Request for comments
III. Rulemaking analyses and notices
IV. Submission of comments
On December 17, 1992, the United States, Canada and Mexico signed the North American Free Trade Agreement (NAFTA). Following approval by Congress, NAFTA entered into force on January 1, 1994.
Since 1982, a statutory moratorium in the United States 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 to have been permitted beyond the border zone on January 1, 1994. Truck operations were to have been permitted in the four United States border states in December 1995, and throughout the United States on January 1, 2000; scheduled bus operations were to have been permitted throughout the United States on January 1, 1997.
Because of concerns about safety, the United States postponed implementation of NAFTA with respect to Mexico-domiciled truck and scheduled bus service and continued its blanket moratorium on processing applications by Mexico-domiciled motor carriers for authority to operate in the United States outside the border zone. On February 6, 2001, a NAFTA dispute-resolution panel ruled that the blanket moratorium violated the United States’ commitments under NAFTA.
B. Steps to provide for the safe implementation of the NAFTA provision for cross border operation of commercial motor vehicles
The Department of Transportation (DOT) is now preparing for the implementation of NAFTA's provisions for cross border operation of commercial motor vehicles. However, in doing this, the Department must assure that cross border operation of commercial vehicles will be conducted in a safe manner. To that end, NHTSA and FMCSA are issuing a series of notices.
NHTSA is issuing its series of notices under 49 U.S.C. § 30101 et seq. (Vehicle Safety Act). The purpose of the Act is to reduce the number of motor vehicle crashes and deaths and injuries resulting from such crashes.
One of NHTSA’s primary concerns under the Vehicle Safety Act is to ensure that the vehicles operated in the United States by Mexico-domiciled motor carriers were manufactured or modified to comply with the Federal motor vehicle safety standards (FMVSSs) issued under that Act that were in effect at the time the vehicles were manufactured.
The Vehicle Safety Act specifies 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.)
Thus, in general, the FMVSSs apply to new motor vehicles that vehicle manufacturers manufacture for sale in the United States. They also apply to new or used motor vehicles that anyone presents for importation into the United States, whether for sale, resale or other purposes. This includes all motor carriers, regardless of where they are domiciled. The Vehicle Safety Act also requires manufacturers to certify that their vehicles comply with all applicable safety standards.  The vehicles must bear a permanent label that is affixed by the vehicle manufacturer that certifies that the vehicles, at the time of manufacture, complied with all applicable safety standards.  49 U.S.C. § 30115.
As discussed in the draft policy statement that is a companion to this document, NHTSA has had a policy of allowing fabricating vehicle manufacturers to retroactively certify their vehicles in limited circumstances. The agency believes that extending that policy to vehicles that are engaged in the transport of goods or passengers in interstate commerce across the Canadian or Mexican borders is the best way to ensure the safety of the driving public while also meeting our treaty obligations. Accordingly, NHTSA is requesting comment on the policy of allowing fabricating manufacturers of vehicles produced for sale in Mexico or Canada that do not have a U.S. certification label to apply such labels retroactively to vehicles if they complied with all applicable U.S. standards in effect at the time of original manufacture.  The proposed policy statement would be limited to commercial motor vehicles manufactured on or before August 31, 2002 and would require that they be retroactively certified by September 1, 2005.
We are proposing in this document to require vehicle manufacturers to make and retain a list identifying all commercial vehicles to which they retroactively affix a certification label. We believe this is appropriate because of the risk that unauthorized parties could apply a certification label in an effort to allow non-compliant vehicles to be imported into the United States. Only fabricating vehicle manufacturers and, subject to the requirements of 49 U.S.C. § 30141 and 49 CFR Part 591, registered importers may retroactively certify compliance with the FMVSS. The proposed list would provide a means to check whether a particular retroactive certification label has been affixed by a fabricating vehicle manufacturer.
The manufacturer would be required to maintain a list of its retroactively certified vehicles, identified by the vehicle identification number (VIN), or if the vehicle does not have a VIN that meets the requirements of 49 CFR Part 565, with alternative information that uniquely identifies each vehicle, including the vehicle make, model, and year. We are also proposing to require the manufacturers to record the month and year of original manufacture of each vehicle to which it has retroactively applied a certification label and the month and year in which the retroactive certification label was affixed. Manufacturers would be required to maintain these records for five years after the date on which the retroactive certification label was affixed.
This rule would not apply to registered importers. Rather, registered importers would be required to meet all the applicable conditions of 49 U.S.C. § 30141, et seq. and 49 CFR Part 591. NHTSA does not intend this series of rulemakings to affect how the registered importer program currently operates.
Only those fabricating manufacturers who decide to retroactively affix certification labels to one or more vehicles would be subject to the proposed recordkeeping and retention requirements. Vehicle manufacturers are not required to retroactively certify compliance and in many instances will be unable to do so. This is because many vehicles manufactured for sale in Mexico did not comply with all applicable FMVSSs at the time of original manufacture and cannot be readily modified by the manufacturer to comply with those standards. As a practical matter, only those manufacturers who produced and certified substantially similar vehicles for sale in the United States at the same time that the non-certified vehicle was manufactured would likely be able to certify a vehicle retroactively, since only those manufacturers would have the information needed to assure that the vehicle in fact complied.
We are not proposing to require these manufacturers to retain the factual and analytical information that they rely on to certify compliance. Currently, we do not require any certifying manufacturer to do so. However, it is in their best interest to retain that information in the event that an issue arises as to whether a vehicle complied with an applicable safety standard. Although manufacturers of vehicles sold in the United States develop and retain testing and other information that supports their certification that their vehicles comply, we recognize that the circumstances surrounding retroactive certification are somewhat different, since the vehicle manufacturer may be relying on data that are at least several years old.
II. Requests for Comments
1) Please comment on whether vehicle manufacturers should document and retain information in addition to a unique vehicle identifier, and the dates of original manufacture and retroactive certification. If so, what additional information should be required, and why?
2) Please provide information on what types of unique vehicle identifiers are used to identify vehicles manufactured for sale in Canada or Mexico.
3) Please comment on whether the records described in this notice should be maintained for a period of time other than five years after the date of retroactive certification.
III. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
Executive Order 12866, "Regulatory Planning and Review," provides for making determinations whether a regulatory action is "significant" and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a "significant regulatory action" as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
We have considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not considered a significant regulatory action under section 3(f) of the Executive Order 12866. Consequently, this rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, "Regulatory Planning and Review." The rulemaking action is also not considered to be significant under the Department's Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).
This document would amend 49 CFR Part 576 by adding new recordkeeping requirements for vehicle manufacturers that retroactively affix U.S. certification labels to vehicles that were originally manufactured for sale outside of the United States. The cost of maintaining such records would be minor and the required retention of such records would not raise any novel legal or policy issues.
Executive Order 13132
Executive Order 13132 requires NHTSA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations that have "substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government." Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.
We have analyzed this rule in accordance with the principles and criteria set forth in Executive Order 13132 and have determined that this rule does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. The rule will 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.
Executive Order 13045
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rulemaking that: (1) is determined to be "economically significant" as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.
This rulemaking is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866. It also does not involve decisions based on health risks that disproportionately affect children.
Executive Order 12778
Pursuant to Executive Order 12778, "Civil Justice Reform," we have considered whether this proposed rule would have any retroactive effect. This proposed rule, if adopted, would not have any retroactive effect. A petition for reconsideration or other administrative proceeding will not be a prerequisite to an action seeking judicial review of this rule if it is adopted. This proposed rule would not preempt the states from adopting laws or regulations on the same subject, except that it would preempt a state regulation that is in actual conflict with the federal regulation or makes compliance with the Federal regulation impossible or interferes with the implementation of the federal statute.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
I have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. §601 et seq.) and certify that this proposal will not have a significant economic impact on a substantial number of small entities. This proposal would merely impose minor recordkeeping obligations on vehicle manufacturers that decide to retroactively apply a certification label. The application of such a label is voluntary.
National Environmental Policy Act
We have analyzed this proposed amendment 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.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The proposed rule would require vehicle manufacturers who retroactively apply certification labels to maintain a list of all vehicles so certified. NHTSA is currently working on obtaining a valid OMB control number.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104‑113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in our regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
No voluntary consensus standards were used in developing the proposed requirements because no voluntary standards exist that address the subject of this rulemaking.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 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 in any one year (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires us to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost‑effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows us to adopt an alternative other than the least costly, most cost‑effective or least burdensome alternative if we publish with the final rule an explanation why that alternative was not adopted.
The proposed rule would not impose any unfunded mandates under the Unfunded Mandates Reform Act of 1995. This rulemaking does not meet the definition of a Federal mandate because it would not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector. Thus, this rulemaking is not subject to the requirements of sections 202 and 205 of the UMRA.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.
IV. 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 ADDRESS.
How can I be sure that my comments were received?
If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
How do I submit confidential business information?
If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above under ADDRESS. 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 ADDRESS. 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:
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".
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 576
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, NHTSA proposes to amend 49 CFR part 576 as follows:
1. The authority citation for part 576 continues to read as follows:
Authority: 49 U.S.C. 30112, 30115, 30117-121, 30166-167; delegation of authority at 49 CFR 1.50.
2. Designate §§ 576.1 through 576.8 as Subpart A – “General”
3. Revise §§ 576.1 through 576.4 to read as follows:
§ 567.1 Scope.
This subpart establishes requirements for the retention by motor vehicle manufacturers of complaints, reports, and other records concerning motor vehicle malfunctions that may be related to motor vehicle safety.
§ 567.2 Purpose.
The purpose of this subpart is to preserve records that are needed for the proper investigation, and adjudication or other disposition, of possible defects related to motor vehicle safety and instances of nonconformity to the motor vehicle safety standards and associated regulations.
§ 567.3 Application.
This subpart applies to all manufacturers of motor vehicles, with respect to all records generated or acquired after August 15, 1969.
§ 567.4 Definitions.
All terms in this subpart that are defined in the Act are used as defined therein.
4. Revise § 576.6 to read as follows:
§ 576.6 Records.
Records to be retained by manufacturers under this subpart include all documentary materials, films, tapes, and other information-storing media that contain information concerning malfunctions that may be related to motor vehicle safety. Such records include, but are not limited to, communications from vehicle users and memoranda of user complaints; reports and other documents, including material generated or communicated by computer, telefax, or other electronic means, that are related to work performed under, or claims made under, warranties; service reports or similar documents, including electronic submissions, from dealers or manufacturer's field personnel; and any lists, compilations, analyses, or discussions of such malfunctions contained in internal or external correspondence of the manufacturer, including communications transmitted electronically.
5. Revise § 576.8 to read as follows:
§ 576.8 Malfunctions covered.
For purposes of this subpart, "malfunctions that may be related to motor vehicle safety" shall include, with respect to a motor vehicle or item of motor vehicle equipment, any failure or malfunction beyond normal deterioration in use, or any failure of performance, or any flaw or unintended deviation from design specifications, that could in any reasonably foreseeable manner be a causitive factor in, or aggravate, an accident or an injury to a person.
6. Add subpart B to read as follows:
Subpart B – Recordkeeping and Retention by Manufacturers that Retroactively Certify Compliance with Federal Motor Vehicle Safety Standards
576.26 Form of retention
Subpart B – Recordkeeping and Retention by Manufacturers that Retroactively Certify Compliance with Federal Motor Vehicle Safety Standards
§ 576.21 Scope.
This subpart establishes requirements for the generation and retention by motor vehicle manufacturers, other than registered importers, of information related to motor vehicles that are retroactively certified as complying with all applicable Federal motor vehicle safety standards, to permit the importation of those vehicles into the United States.
§ 576.22 Purpose.
The purpose of this subpart is to facilitate determining whether a vehicle manufactured for sale in a country other than the United States, but being used in the United States, has a valid certification of compliance with all applicable Federal motor vehicle safety standards.
§ 576.23 Application.
This subpart applies to manufacturers that originally manufactured motor vehicles for sale in a country other than the United States and that retroactively certify that one or more of those vehicles comply with all Federal motor vehicle safety standards that were applicable to those vehicles at the time of their original manufacture.
§ 576.24 Requirements.
Each manufacturer of motor vehicles described in §576.23 must retain all records described in § 576.25, in the manner described in § 576.26, for a period of five years from the date on which the certification label was retroactively affixed to the vehicle.
§ 576.25 Records.
Each manufacturer required by this subpart to maintain records must generate and retain records that identify all vehicles that have been retroactively certified by the vehicle manufacturer. The records retained must include, at a minimum, the following information for each vehicle:
(a) The vehicle identification number (VIN) issued in accordance with Part 565 of this chapter or, if the vehicle does not have such a VIN, another unique vehicle identifier which provides the means to identify the vehicle make, model, and model year;
(b) The month and year of original manufacture; and
(c) The month and year the retroactive certification label was affixed to the vehicle.
§ 576.26 Form of Retention.
Information may be reproduced or transferred from one storage medium to another (e.g., from paper files to computer disks) as long as no information is lost in the reproduction or transfer.
Kenneth N. Weinstein
Associate Administrator for Safety Assurance
Billing Code 4910-59-P
[Signature page for RIN 2127-AI59
Request for Comments]
 A vehicle imported into the United States
by a registered importer pursuant to 49 U.S.C. § 30141, et seq. and 49 CFR
Part 591 is not required to have a certification label affixed to the vehicle
prior to entry into the U.S. However, it must have a certification label
affixed by the registered importer before it can be sold or released for highway
 In some instances, minor modifications may be necessary to bring the vehicle into compliance with the safety standards in effect at the time of manufacture. For example, a manufacturer may need to add an indicator that the odometer readings are in km/h.