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Federal Register / Vol. 70, No.

165 / Friday, August 26, 2005 / Proposed Rules 50277

seized, or placed out of service for the Mexico-based tour operator boarded references to FMVSSs, we require motor
absence of a certification label. passengers in the United States, carriers to ensure their CMVs are
Advocates expressed a different view, transported them to Mexico, and equipped with specific safety devices
contending without a certification label, returned them to the United States. and systems required by NHTSA on
‘‘there can be no presumption of Likewise, if a Mexico-based fixed-route newly manufactured vehicles, and to
affirmative compliance with the operation between points in Mexico and maintain their vehicles to ensure
certification requirement * * * [This is] the United States picked up passengers continued safe performance. The
evidence that the vehicle was not at any point in the United States, ADA roadside inspection program will ensure
properly certified and inspectors should rules would apply. this is the case to the greatest extent
place the vehicle out of service.’’ If a passenger has a concern about the practicable.
In supplementary comments, CVSA manner in which a provider of interstate In view of the foregoing, the NPRM
stated a label does not, by itself, provide highway passenger transportation concerning certification of compliance
evidence of the vehicle’s safety. CVSA complies with the ADA, he or she with the Federal Motor Vehicle Safety
considered it impractical to place a should contact the U.S. Department of Standards is withdrawn.
vehicle out of service solely because it Justice (Justice), Civil Rights Division, Issued on: August 19, 2005.
lacks a certification label. Disability Rights Section.2 FMCSA will
FMCSA Response: Since we are Annette M. Sandberg,
coordinate with Justice to ensure the
withdrawing the proposed certification Administrator.
concern is addressed. FTA’s jurisdiction
label requirement, this issue is now concerning ADA compliance extends [FR Doc. 05–16967 Filed 8–25–05; 8:45 am]
moot. However, we addressed this only to its public-agency grantees. BILLING CODE 4910–EX–P
subject in the preamble to the NPRM (67 With regard to Public Citizen’s
FR 12782, at 12784, footnote 4), stating comment, CMVs operated by Mexico-
failure to have a certification label domiciled motor carriers are issued a DEPARTMENT OF TRANSPORTATION
would not result in a vehicle’s being USDOT number with a suffix indicating
placed out of service in the absence of National Highway Traffic Safety
whether they are authorized to operate Administration
vehicle defects meeting existing out-of- within or beyond the border commercial
service criteria. The preamble to the zones. By regulation, these unique
NHTSA proposed policy statement (67 49 CFR Parts 567, 576 and 591
USDOT numbers are prominently
FR 12790, at 12792) also addressed this displayed on both sides of the CMV. [Docket No. NHTSA–2005–22197]
issue.
FMCSA Decision RIN 2127–AI59, RIN 2127–AI60, RIN 2127–
Other Vehicle Laws and Regulations AI64
After review and analysis of the
Greyhound urged FMCSA to public comments discussed in the Retroactive Certification of
coordinate with the Federal Transit preceding section, and in consultation Commercial Motor Vehicles by Motor
Administration (FTA) and the Office of with NHTSA, FMCSA determined it can Vehicle Manufacturers
the Secretary of Transportation to effectively ensure motor carriers’
ensure fixed-route service operations compliance with applicable FMVSSs AGENCY: National Highway Traffic
comply with the requirements of the through continued vigorous Safety Administration (NHTSA), DOT.
Americans with Disabilities Act (ADA). enforcement of the FMCSRs, coupled ACTION: Notice of withdrawal of
(According to 49 CFR Part 37, Subpart with measures detailed in our proposed rulemakings and policy
H, all buses acquired for fixed-route enforcement policy memorandum statement.
service must be equipped with a regarding Mexico-domiciled carriers
wheelchair lift. Until 100 percent of the SUMMARY: This document completes
and vehicles. These new enforcement
fleet is equipped, operators must NHTSA’s consideration of its
measures will begin immediately. We
provide wheelchair lift service on 48 responsibilities to help implement the
will compile data regarding Mexico-
hours’ notice.) obligations of the United States under
domiciled vehicles falsely certified as
Public Citizen recommended FMCSA the North American Free Trade
FMVSS compliant on the motor carrier’s
issue embossed or bolted-on CMV Agreement. The agency had proposed
application for operating authority and,
certification markings to aid Federal and regulations to permit retroactive
when appropriate, take necessary action
State enforcement officials in certification of foreign domiciled
as described in the policy
determining the legal status of each vehicles that, while built in compliance
memorandum.
vehicle, and that border-commercial- with U.S. standards applicable at the
This approach will help ensure the
zone-only trucks be ‘‘visually time of manufacture, had not been
safety of Mexico-domiciled CMVs in
distinguishable’’ from those allowed to labelled as such. At the same time, the
real-world, operational settings while
operate beyond the border zones. Federal Motor Carrier Safety
eliminating the potential drawbacks
FMCSA Response: In response to Administration had proposed to require
associated with requiring commercial
Greyhound’s comment, DOT has a long- all commercial motor vehicles operating
motor vehicles to display an FMVSS
standing interpretation that Canada- or in the U.S. to have labels certifying
certification label, as identified by many
Mexico-based motor carriers are subject compliance with the Federal motor
of the commenters to the NPRM.
to ADA requirements if they pick up vehicle safety standards (FMVSS).
We again emphasize all motor carriers
passengers in the United States. If a After reviewing the comments on the
operating in the United States must
Mexico-based charter or tour operator NHTSA and FMCSA proposals, the
comply with all applicable laws and
boarded passengers in Mexico, drove Department has decided on a more
regulations, including all of the FMCSRs
them to a point in the United States, and effective and less cumbersome approach
as well as those that cross-reference
then returned the passengers to Mexico to ensuring that commercial motor
particular FMVSSs. Through our cross-
without picking up anyone in the vehicles were built to the FMVSS (or the
United States, the ADA requirements 2 950 Pennsylvania Avenue, NW., Mail Code very similar Canadian motor vehicle
would not apply. However, the ADA NYAV, Washington, DC 20530. Information is also safety standards) and operate safely in
requirements would apply if the available at http://www.usdoj.gov/crt/drssec.htm. the United States.

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50278 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules

FMCSA requires Mexican-domiciled B. Mexican-domiciled Commercial Motor and the facilitation of cross-border
carriers applying to operate in the Vehicles movement of goods and services.
United States to certify in their V. FMCSA’s Enforcement Policy Annex I of NAFTA called for
applications that their vehicles were VI. NHTSA’s Interpretation of the Import liberalization of access for Mexican-
Prohibition in the Vehicle Safety Act domiciled motor carriers on a phased
manufactured or retrofitted in A. NHTSA’s 1975 Interpretation
compliance with the FMVSSs B. Possible Alternative Interpretations of
schedule. Annex I: Reservations for
applicable at the time they were built, the Import Prohibition Existing Measures and Liberalization
and will confirm that certification 1. Import—Illegal Goods Definition Commitments, Schedule of the United
during the pre-authority safety audit 2. Import—Definition Used in Determining States. Pursuant to this schedule,
and subsequent inspections. In addition, Whether an Item Brought into the U.S. is Mexican-domiciled charter and tour bus
enforcement through the Federal Motor Subject to Tariff operations were to be permitted beyond
Carrier Safety Regulations focuses on 3. Import—Use of Tariff Definition in non- the border zone on January 1, 1994.
real world, operational safety and Tariff Context Truck operations were to have been
C. Factors not Considered in the 1975 permitted in the four United States
incorporates the various FMVSS Interpretation or NPRM
applicable through the useful life of the border states in December 1995, and
1. U.S. Customs Regulations in Effect in
vehicle. 1966
throughout the United States on January
FMCSA will not require vehicles to 2. Treatment of Canadian-domiciled 1, 2000; scheduled bus operations were
have labels certifying their compliance Commercial Motor Vehicles to have been permitted throughout the
with the standards in effect when they 3. FY 2002 DOT Appropriations Act United States on January 1, 1997.
were built, and NHTSA is not Appendix However, the United States postponed
proceeding with a retroactive implementation with respect to
I. Background Mexican-domiciled truck and scheduled
certification approach or the related
proposal for a new recordkeeping and A. U.S. Moratorium on Operating bus service due to concerns about
retention rule. We have also decided Authority for Mexican-Domiciled Motor safety, continuing its blanket
against placing a definition of the term Carriers moratorium on processing applications
‘‘import’’ in the Code of Federal by these Mexican-domiciled motor
Since 1982, a statutory moratorium on carriers for authority to operate in the
Regulations. After considering the the issuance of operating authority to
comments, we have concluded that United States outside the border zone.
Mexican-domiciled motor carriers has, On February 6, 2001, a NAFTA
creating a new regulation to define the with a few exceptions, limited the
term serves no regulatory function and dispute resolution panel ruled that the
operations of such carriers to blanket moratorium violated the United
is unnecessary for the promotion of municipalities and commercial zones
motor vehicle safety. States’ commitments under NAFTA.
along the United States-Mexico border NAFTA Panel Established Pursuant to
FOR FURTHER INFORMATION CONTACT: For (‘‘border zone’’). Bus Regulatory Reform Chapter Twenty in the Matter of Cross-
technical issues, you may call Julie Act of 1982, Public Law No. 97–261, 96 Border Trucking Services Final Report
Abraham, Director of the NHTSA Stat. 1102 (1982). The nearly blanket (Feb. 6, 2001), 40 I.L.M. 772.
International Policy, Fuel Economy and moratorium, which initially applied to
Consumer Program, at 202–366–0846. both Mexican- and Canadian-domiciled C. NAFTA-Related Actions by the
For legal issues, you may call Edward motor carriers, was lifted against Canada Department of Transportation
Glancy of the NHTSA Office of Chief pursuant to a memorandum from The Department of Transportation is
Counsel, at 202–366–2992. President Reagan to the United States now preparing for the implementation
You may send mail to both of these Trade Representative published in the of the NAFTA provisions concerning
officials at the National Highway Traffic Federal Register. 47 FR 54053; Mexican-domiciled motor carriers. The
Safety Administration, 400 Seventh St., December 1, 1982. Department is adopting and
SW., Washington, DC 20590. The memorandum was issued after implementing appropriate and effective
SUPPLEMENTARY INFORMATION: the United States and Canada agreed, safety measures as the United States
Table of Contents via an exchange of letters, to lift certain takes the steps necessary to comply with
I. Background trade restrictions that were prohibiting its obligations under NAFTA regarding
A. U.S. Moratorium on Operating the free flow of goods across the U.S.- the access of Mexican-domiciled motor
Authority for Mexican-domiciled Motor Canadian border. Safety of the Canadian carriers engaged in interstate commerce
Carriers commercial motor vehicles was not to the United States.
B. NAFTA–U.S. Commitments and the identified as an area of concern in these As part of that effort, NHTSA has
Moratorium letters. been examining the question of what
C. NAFTA-Related Activities by the role it should play under a statute
Department of Transportation B. NAFTA–U.S. Commitments and the
originally known as the National Traffic
II. Summary of Comments Moratorium
III. NHTSA Analysis of the Differences and Motor Vehicle Safety Act. That
Between the FMVSSs and the CMVSSs Groundwork for lifting the statute has been codified at 49 U.S.C.
IV. Impact of a Certification Requirement on moratorium as to Mexican-domiciled 30101, et seq. (In the interest of
Canadian- and Mexican-domiciled commercial motor vehicles was laid on simplicity, we will refer to that statute
Commercial Motor Carriers December 17, 1992, when the United as the Vehicle Safety Act.) The purpose
A. Federal Motor Carrier Safety States, Canada and Mexico signed the of the Vehicle Safety Act is to reduce
Regulations North American Free Trade Agreement the number of crashes and deaths and
B. Canadian-domiciled Commercial Motor (NAFTA or Agreement). Following injuries resulting from crashes.
Vehicles approval by Congress, the Agreement Pursuant to the Vehicle Safety Act,
1. Volume of the U.S.-Canadian Cross-
border Trade
entered into force on January 1, 1994. NHTSA issues Federal motor vehicle
2. Impact of the Proposed Rules on NAFTA establishes a free trade area, safety standards (FMVSSs) that apply to
Canadian Motor Carriers and its primary objectives are the new motor vehicles that are
3. Safety Record of Commercial Motor promotion of free trade and investment manufactured for sale in the United
Vehicles Selected for Inspection through the elimination of trade barriers States. The FMVSSs also apply, subject

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Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50279

to certain exemptions, to new or used or passenger-carrying vehicles) operated real world safety. With only a few
motor vehicles imported into the United in interstate commerce and drivers of differences, the Canadian motor vehicle
States. The Vehicle Safety Act requires those vehicles. The regulations also safety standards are identical to the U.S.
manufacturers to certify that their require commercial motor carriers, i.e., manufacturing performance standards
vehicles, at the time of manufacture, those businesses that engage in the (the FMVSS), and FMCSA’s operating
comply with all applicable safety transport of cargo or passengers, to meet regulations incorporate the FMVSS
standards. 49 U.S.C. 30112. Each specified operating requirements. critical to continued safe operation. As
manufacturer must give evidence of this In conjunction with those two necessary, FMCSA’s enforcement
certification by affixing to its vehicles a proposals, NHTSA issued a request for program may use VINs and other
permanent label stating that the comments on a draft policy statement available information to check that
manufacturer certifies that the vehicles providing that a vehicle manufacturer commercial motor vehicles operating in
comply with all applicable safety may, if it has sufficient basis for doing the U.S. were originally built to the
standards. 49 U.S.C. 30115. so, retroactively certify that a motor FMVSS or CMVSS applicable at the
In 1975, NHTSA interpreted this vehicle complied with all applicable time of their manufacture.
provision of section 30112 as applying FMVSSs in effect at the time of FMCSA will not require vehicles to
to all vehicles entering the United manufacture and affix a label to that have labels certifying their compliance
States. In a letter from the NHTSA effect (March 19, 2002, 67 FR 12790, with the standards in effect when they
Administrator to the Canadian Trucking Docket No. NHTSA 02–11594). To were built, and is withdrawing its
Association, the agency stated that facilitate compliance further, FMCSA proposal on that subject. NHTSA is not
Canadian commercial vehicles proposed a short-term exception from proceeding with a retroactive
transporting cargo into and within the its proposed requirement, allowing a certification approach or the related
United States are imports within the two-year grace period for carriers with proposal for a new recordkeeping and
context of 49 U.S.C. 30112 and must be existing operating authority to have retention rule. We have also decided
certified.1 Although the 1975 letter did their vehicles retroactively certified. against placing a definition of the term
not address the issue of Mexico- New operators would have had to ‘‘import’’ in the Code of Federal
domiciled commercial motor vehicles, comply with the FMCSA requirement Regulations. After considering the
its rationale applied equally to those immediately. In addition, NHTSA comments, we have concluded that
vehicles. issued an NPRM proposing creating a new regulation to define the
Following the decision of the NAFTA recordkeeping requirements for term serves no regulatory function and
panel in February 2001, NHTSA manufacturers that retroactively certify is unnecessary for the promotion of
reviewed its 1975 interpretation. On their vehicles (March 19, 2002, 67 FR motor vehicle safety.
March 19, 2002, we proposed to define 12800, Docket No. NHTSA 02–11592). II. Summary of Comments
the term ‘‘import’’ in the Code of The comment period for all four
Federal Regulations in a manner A total of 79 comments, many of them
notices ended on May 20, 2002.
consistent with the 1975 interpretation duplicative, were received in the docket
After careful consideration of the
for the four rulemakings. Most of the
and sought comment on that comments (which are discussed below)
comments addressed the FMCSA notice
interpretation of that term (67 FR 12806, and also consistent with the actions
proposing that all commercial motor
Docket No. NHTSA–02–11593). being taken by FMCSA, we have
FMCSA also issued an NPRM on that vehicles operating in the U.S. be
decided to withdraw the three
date, proposing to require that all certified and be labeled as certified.
documents. The Department has However, several of the commenters
commercial motor vehicles operating in developed a more effective and less also addressed the implications of the
interstate commerce in the United States cumbersome approach to ensure that proposed definition of the word
have labels certifying their compliance commercial motor vehicles operating in ‘‘import’’ and its impact on the existing
with the FMVSSs in effect when they the United States were originally built open U.S.-Canadian border and motor
were built (67 FR 12782, Docket No. to the FMVSSs (or, as discussed below, vehicle safety. Only a few commenters
FMCSA 01–10886). FMCSA is the the very similar Canadian motor vehicle offered an opinion as to the validity of
agency within the Department of safety standards (CMVSSs)) applicable the interpretation on which the
Transportation that is responsible for at the time of their manufacture and proposed definition of ‘‘import’’ was
oversight of commercial motor carriers operate safely in the U.S. based.
engaged in interstate commerce. Its FMCSA, among other things, requires Various trade organizations
regulations address both the commercial Mexican-domiciled carriers applying to representing both motor carriers and
motor vehicles 2 (generally large trucks operate in the United States to certify in truck manufacturers submitted
their application that their vehicles comments generally opposed to the
1 See letter dated May 9, 1975 from NHTSA
were manufactured or retrofitted in group of rulemakings. Representatives
Administrator James B. Gregory to M. C. Carruth,
Docket No. NHTSA–02–11593.
compliance with the FMVSSs of the transit industry, labor
2 A ‘‘commercial vehicle’’ is any self-propelled or applicable at the time they were built organizations, vehicle insurers, and
towed motor vehicle used on a highway in and will confirm that certification consumer groups filed comments that
interstate commerce to transport passengers or during the pre-authority safety audit were generally supportive of the NPRM
property when the vehicle: (1) Has a gross vehicle and subsequent inspections.
weight rating (GVWR) or gross combination weight proposing to define ‘‘import,’’ but
rating (GCWR)—or a gross vehicle weight (GVW) or FMCSA’s enforcement program will generally not supportive of the draft
gross combination weight (GCW)—of 4,536 ensure that commercial motor vehicles policy statement on retroactive
kilograms (10,001 pounds) or more, whichever is operating in the United States comply certification or the proposed
greater; or (2) is designed or used to transport more with all of the operating and
than 8 passengers, including the driver, for recordkeeping requirements. They were
compensation; or (3) is designed or used to maintenance regulations necessary for particularly concerned about the
transport more than 15 passengers, including the potential for fraud and abuse if
driver, whether or not it is used to transport 5103 and transported in a quantity requiring
passengers for compensation; or (4) is used in placarding under regulations prescribed by the
retroactive certification were permitted.
transporting material found by the Secretary of Secretary under 49 CFR, Subtitle B, Chapter I, They were also opposed to the proposed
Transportation to be hazardous under 49 U.S.C. Subchapter C. See 49 CFR 390.5. grace period in the FMCSA rulemaking.

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Additionally, the Canadian mutual recognition has proven effective regardless of whether they have
government, as well as two of its in maximizing cross-border trade, while previously been allowed to operate in
provinces, Manitoba, and ensuring that each country’s legitimate this country. They argued also that the
Newfoundland and Labrador, filed safety concerns are sufficiently grace period contemplated in the
submissions. While the Canadian addressed. FMCSA proposal was inappropriate.
authorities noted that they understood The American Trucking Associations Various commenters claimed that the
and supported the right of the U.S. to (ATA) argued that NHTSA should not vast majority of Mexican-manufactured
ensure the safety of its roads, they said interpret ‘‘import’’ to include the buses did not comply with the FMVSSs
that inspection and crash data showed entrance of foreign commercial motor when originally manufactured, and do
that Canadian commercial vehicles are vehicles engaged in the transport of not comply now (particularly as to
at least as safe as U.S. commercial goods in the cross-border trade. It brakes, fuel systems, windows, and
vehicles. They argued that, in those argued that this interpretation is emergency exits). They also said that it
circumstances, extending the inconsistent with the U.S. Customs is apparent from the FMCSA/NHTSA
certification requirements to the classification of such vehicles as notices, when considered together, that
Canadian vehicles amounts to a ‘‘instruments of international many thousands of Mexican carriers
technical trade barrier under the WTO commerce,’’ instead of ‘‘imports.’’ The have been traveling into the U.S. for
and NAFTA. province of Newfoundland and many years without conforming to the
Canada emphasized the substantial Labrador argued that commercial U.S. safety standards. They argued that
similarity between the CMVSSs and the vehicles that enter the U.S. for purpose non-compliant commercial motor
FMVSSs, as well as the similarity of the carriage of goods or passengers vehicles present a special safety hazard
between their underlying statute and should not be considered imports unless on U.S. roads, and non-compliant motor
ours (both of which are over 30 years there is a change of ownership such that coaches, in particular, are especially
old). The CMVSSs are intentionally the vehicle can no longer be considered dangerous for both bus passengers and
harmonized with the FMVSSs to the foreign-domiciled. other highway users. They believe the
maximum extent possible. The The Transportation Trades requirement that all vehicles display a
exceptions are generally limited to Department of the AFL-CIO (TTD), valid FMVSS certification label would
labeling requirements (metric, both International Brotherhood of Teamsters rectify this problem.
French and English) and those instances (IBT), American Insurance Association Advocates and AIA tentatively
in which the Canadian environment is (AIA), Public Citizen and Advocates for supported the concept of retroactive
unique (mandatory daytime running Highway and Auto Safety (Advocates) certification, although they expressed
lights because of long periods of twilight all believe NHTSA’s 1975 interpretation some concerns about the program, most
in many parts of the country). of the import prohibition should be notably the possibility of the issuance of
Industry representatives agreed with applied today, that it is based on mistaken, unsupported, or fraudulent
Canada’s assessment, noting that like ‘‘unequivocal’’ statutory language, and certifications. They argued that the large
the U.S., Canada has a long history of that it is needed to ensure the safety of population of ineligible Mexican
comprehensive and substantially similar our roadways. However, their comments vehicles would inevitably encourage the
safety standards that govern the and criticisms were limited to the issuance of false certifications and the
manufacture of motor vehicles, impact of non-certified commercial production of fraudulent labels. They
including commercial trucks. They said motor vehicles coming into the United also argued that the proposed policy
that, in some instances, the Canadian States from Mexico. statement does not provide sufficient
standards are arguably more stringent AIA pointed out that the NAFTA safeguards to ensure that only those
than the U.S. standards. The Truck panel decision specifically allows for vehicles that, in fact, complied when
Manufacturers Association (TMA) stated U.S. safety agencies to impose measures originally manufactured (or are
that, from a safety perspective, the two that guarantee the safe operation of subsequently modified to achieve
major areas of difference between U.S. trucks in the U.S., even if those compliance) would actually be certified.
and Canadian heavy vehicles are the measures impose limitations or Finally, they claimed that since
effective dates for anti-lock brake requirements on Mexican-domiciled Mexican manufacturers and carriers are
systems (ABS) and automatic brake motor carriers that are not imposed on unfamiliar with the FMVSSs, and there
adjusters. It argued, however, that this U.S.- or Canadian-domiciled carriers. It is no labeling requirement in Mexico,
lag time is of no practical consequence also noted that a lack of sufficient the only way to verify compliance of
in view of the requirement at 49 CFR guarantees of safety, as a general rule, each Mexican-manufactured vehicle
393.55 of the Federal Motor Carrier makes a class of business less insurable certified as conforming to the FMVSSs
Safety Regulations (FMCSRs) that all or increases the cost of coverage. The is to inspect each vehicle along with the
commercial motor vehicles operating in IBT argued that the application of documentation at the time of the pre-
the U.S. be equipped with ABS and vehicle safety requirements to Mexican authorization safety audit. Without this
automatic brake adjusters that meet the carriers is consistent with the policy initial, threshold confirmation of
requirements of FMVSS No. 105, expressed by Congress in the Murray- conformity with the FMVSSs, they
Hydraulic and Electric Brake Systems, Shelby legislation (section 350 of the argued, Mexican-domiciled motor
or FMVSS No. 121, Air Brake Systems. 2002 DOT Appropriations Act, Pub. L. carriers might certify their vehicles
Canada also observed that the U.S. 107–87) regarding the importance of without any demonstrable proof of
and Canada have engaged in mutual preventing unsafe commercial motor conformity.
acceptance of safety rules related to vehicles from entering the U.S.
commercial motor carriers (e.g., The Amalgamated Transit Union III. NHTSA’s Analysis of the
acceptance of commercial driver’s (ATU) and Greyhound, as well as AIA, Differences Between the FMVSSs and
license qualifications, vehicle argued that all commercial motor the CMVSSs
inspection standards) since 1982, when vehicles should be required to have a As noted by Canada in its comments,
the moratorium on issuing operating sticker or plate (i.e., a FMVSS the FMVSSs and CMVSSs are issued
authority to Canadian-domiciled motor certification label) before they are under virtually identical statutes that
carriers was lifted. This system of allowed to operate in the U.S., were enacted over thirty years ago. The

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two statutory schemes both require feedback. Tables 1 and 2 in the vehicle. Indeed, NHTSA and Transport
manufacturers to certify that their appendix to this document generally Canada are involved in a harmonization
vehicles comply with all applicable outline the similarities and differences effort that would eliminate most of these
safety standards in effect at the time of between the two sets of standards. We differences.
manufacture and employ similar believe the efforts of both agencies have The remaining differences are not
enforcement schemes. Both sets of identified all of the significant likely to pose safety problems. Portions
standards are performance based, based differences between the two sets of of FMVSS No. 108 (reflective tape on
on research and data, and generally do standards as they apply to these trailers and allowance of European head
not dictate a particular design, although vehicles. lamps) and FMVSS Nos. 223 and 224
they may have the effect of prohibiting As an initial matter, we note that this (underride prevention) have no
certain designs. NHTSA and Transport analysis is neither a tentative nor a final Canadian counterpart. However,
Canada, the Canadian regulatory agency determination of functional according to the CTEA, all Canadian
tasked with implementing and enforcing equivalence. NHTSA has a formal
trailers entering the United States
its vehicle safety act, work closely in process that allows for functional
already meet the applicable underride
researching the causes and potential equivalence determinations with the
requirements of FMVSS Nos. 223 and
means of addressing deaths and injuries consequence being a change in the
224 because of the underride
related to motor vehicle crashes. standard that may be utilized by any
requirements in the FMCSRs. Similarly,
In 1984, the Department of manufacturer. Rather, today’s analysis
while CMVSS No. 108 allows single-
Transportation and Transport Canada recognizes the tremendous similarity
colored reflective tape on trailers, the
signed Addendum 5, Traffic and Motor between the respective standards. In
Canadian trailers used in the cross-
Vehicle Safety Research (Addendum 5), most instances, no amendment would
border trade meet the requirements of
to the existing Memorandum of be needed. The regulatory requirements
Understanding between Transport already mirror each other. In some FMVSS No. 108, in part because of the
Canada and the United States instances, minor differences exist and a requirement in the FMCSRs that they do
Department of Transportation series of minor changes to the FMVSS so. Finally, the TMA polled its
Concerning Research and Development would be required in order for us to Canadian members and has determined
Cooperation in Transportation (June 18, determine that the respective standards that no Canadian truck manufacturers
1970). Addendum 5 initially addressed are functionally equivalent. We have are using European headlamps, even
cooperative research activities related to decided against such an approach. though the standard allows them.
traffic safety research, crash avoidance Rather, we believe that the manufacture Communications submitted by CTEA
research, crashworthiness research, and or retrofitting of vehicles in compliance documenting these statements have
road safety data collection and analysis. with either the FMVSS or CMVSS been placed in the docket.
The results of these research activities ensures sufficient adequate design As a result of our analysis, we have
were often used to initiate rulemaking integrity to meet the safety concerns determined that allowing commercial
activities. In the 1996 version of posed by the operation of commercial motor vehicles certified to the Canadian
Addendum 5, NHTSA and Transport motor vehicles on the nation’s highways motor vehicle safety standards rather
Canada agreed to extend the cooperation as long as the vehicles also meet all than the U.S. motor vehicle safety
agreement formally to the rulemaking FMCSRs. standards to operate in the United States
activities of the United States and Given the similarities between the will have no negative safety
Canada. The two agencies also agreed to two sets of standards and the existing consequences. Accordingly, requiring
meet at least once a year to review the manufacturer compliance practices, it is these vehicles to be certified twice, once
status of their respective rulemaking neither difficult nor impermissible for a to the CMVSSs and then secondarily to
actions, alert the other to rules commercial motor vehicle certified to the FMVSSs, would impact U.S./Canada
potentially of interest, and discuss near- the CMVSSs to meet the substantive trade and impose requirements on the
term rulemaking plans. In 2002, NHTSA requirements of the FMVSSs. We have Canadian motor carriers, both in terms
and Transport Canada concluded a identified 14 FMVSS/CMVSS pairs of of cost and access to the U.S. market
revision to Addendum 4, which standards that have differences. Most of that cannot be justified.
renewed the cooperation agreement these have only minor differences in
indefinitely in order to ensure performance values, with Canadian IV. Impact of a Certification
continuation of collaborative activities requirements that are at least as Requirement on Canadian- and
between the two departments. A copy of stringent as, and possibly stricter than, Mexican-Domiciled Commercial Motor
Addendum 5, including all updated the corollary requirements in the Carriers
versions, has been placed in the docket. FMVSSs. For example, one of the A. Federal Motor Carrier Safety
As a result of both the similar Canadian standards, CMVSS No. 301.1, Regulations
statutory schemes and the longstanding has no U.S. counterpart, while another,
cooperative relationship between the CMVSS No. 301.2, has broader The condition of safety equipment
two regulatory agencies, as well as the applicability than the corollary FMVSS and features on commercial motor
similarity in their physical Nos. 303 and 304. vehicles is governed by 49 CFR Part 393,
environments and population, the The differences between Canadian Parts and Accessories Necessary for Safe
FMVSSs and CMVSSs mirror each other standards and other U.S. standards like Operation. The Vehicle Safety Act, 49
in almost all substantive respects, FMVSS Nos. 101, 105, and 121 relate U.S.C. 30103(a), specifically requires the
especially as they apply to heavy trucks solely to information on the instrument FMCSRs be fully consistent with the
and buses. panel. These are designed to relay FMVSSs. The provision does not require
NHTSA has evaluated the differences specific information to the vehicle FMCSA to adopt all applicable FMVSSs
between the FMVSSs and the CMVSSs operator and may be based on the as FMCSRs. However, if the item of
that apply to heavy trucks and buses customs and practices of the respective equipment is regulated by the FMCSRs,
(over 4,536 kg (10,000 lb) GVWR). We countries. We believe these differences then they must do so in a manner
shared our analysis with Transport do not have any consequence so long as consistent with the FMVSSs. Section
Canada, which provided additional the vehicle operator is familiar with the 30103(a) states:

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The Secretary of Transportation may not commercial motor vehicles (65% for TMA also noted that NHTSA, in
prescribe a safety regulation related to a Canada, 80% for U.S.). According to proposing to place a definition of the
motor vehicle subject to subchapter I of Canada, this trade generates 13 million term ‘‘import’’ in the CFR, did not offer
chapter 135 of this title [49 U.S.C. 13501 et truck trips across the U.S.-Canadian any data indicating that the Canadian
seq.] that differs from a motor vehicle safety
standard prescribed under this chapter [49
border annually, and represents more vehicles currently operating in the U.S.
U.S.C. §§ 30101 et seq.]. However, the than 25% of the Canadian for-hire are unsafe. Accordingly, they suggested
Secretary may prescribe, for a motor vehicle trucking revenues. there is no safety need for the proposed
operated by a carrier subject to subchapter I Industry representatives have regulation. Additionally, TMA and CTA
of chapter 135 [49 U.S.C. 13501 et seq.], a proffered similar figures. According to argued that the most important
safety regulation that imposes a higher the Canadian Trucking Association influence on in-use vehicle safety is the
standard of performance after manufacture (CTA), the total merchandise trade level and quality of maintenance, driver
than that required by an applicable standard between the U.S. and Canada is valued performance, and the environment in
in effect at the time of manufacture. at almost $600 billion (2001 dollars). which the vehicle is operated. The
Because of the cross-reference in the Typically about 70%, by value, of that FMVSSs do not address the condition of
Vehicle Safety Act to 49 U.S.C. 13501, trade is carried by truck, leading to more a vehicle after it has been sold and put
et seq., foreign-domiciled commercial than 13 million truck trips across the into service.
motor vehicles engaged in interstate U.S.-Canadian border. Trade by truck is Canada also argued that complying
commerce are already subject to crucial to maintaining shippers’ just-in- with the certification requirements after-
requirements based on most of the time delivery schedules. CTA estimates the-fact would be very difficult and
FMVSSs applicable to heavy trucks and that approximately 70,000 (out of costly, and, in many instances,
buses. In most instances, the FMCSRs 225,000) Canadian truck drivers enter impossible. Because the useful life of a
directly cross-reference the applicable the U.S. each year. commercial motor vehicle (particularly
portions of the FMVSSs that apply to Canada contended that the proposed trailers) is well in excess of the
the regulated vehicles. Further, the rules would make it impossible for Canadian 5-year record retention
FMCSRs require that all motor carriers many Canadian motor carriers to requirement, retroactive certification
operating in the United States maintain operate in the U.S. The small fleets and would, in many cases, be impossible.
much of the safety equipment and owner-operators (more than 50% of the Additionally, many manufacturers have
features that NHTSA requires vehicle Canadian carriers) would be the most indicated to the Canadian government
manufacturers to install. substantially impacted. that they would not retroactively certify
In the case of many manufacturing 2. Impact of the Proposed Rules on their vehicles. To the extent they were
standards, for example where a Canadian Motor Carriers willing and able to retrofit these
compliance symbol is placed on the vehicles, they would pass the cost of
The Canadian fleets are not segregated certification onto the carrier. According
piece of equipment, a visual inspection
into ‘‘domestic’’ or ‘‘international’’ to CTA, the cost of retroactive
is sufficient to verify compliance. With
equipment. Accordingly, the CTA certification is impossible to determine.
respect to other manufacturing
argued that, from a practical standpoint, However, assuming the cost would be
standards, most notably the braking
all Canadian vehicles would have to be $1,000 per vehicle,3 Canadian motor
standards, a roadside inspection cannot
retroactively certified and fitted with a carriers would have to spend at least
tell the inspector whether the safety FMVSS label in addition to the existing
equipment, as originally manufactured, $250 million to comply with a FMVSS
CMVSS label if the proposed labeling label requirement and would lose the
was effective enough to have actually requirement were adopted. We agree
complied with the applicable FMVSS. valuable use of their vehicles while they
that, if true, that would constitute a are being certified.
In these instances, however, the significant burden on the Canadian
operating standard itself is designed to fleet. 3. Safety Record of Commercial Motor
ensure that the motor vehicle is TMA claimed that the vast majority of Vehicles Selected for Inspection
currently operating in a safe condition. carriers that would seek retroactive According to data collected by the
Indeed, many of these types of certification under the proposed policy FMCSA, concerning the out-of-service
standards involve aspects of motor statement would be domiciled in rates of commercial motor vehicles
vehicle performance that do not remain Canada rather than Mexico. It noted that selected for roadside inspection in this
constant over the life of the vehicle. in 2000 there were approximately country, Canadian commercial motor
Thus, some FMCSRs address the current 700,000 heavy commercial motor vehicles appear to have a lower out-of-
operational safety of components which vehicles (greater than 10,000 lb GVWR) service rate than do U.S.-domiciled
wear over the life and use of the vehicle, registered in Canada. Since 87% of commercial motor vehicles. These data
while others cross-reference FMVSSs to Canada’s merchandise trade is with the are shown in the table below. It is
ensure that required equipment is in U.S. and most of this merchandise is
place and maintained. In this way, the transported to the U.S. in commercial 3 CTA’s cost estimate was premised on the
FMVSSs and FMCSRs comprise a motor vehicles, a large portion of these following assumptions:
consistent and mutually-supportive set 700,000 vehicles would need to be Each and every piece would have to be taken out
of regulations, as intended by Congress of service for a period of time; returned to the
retroactively certified. According to manufacturer of deliverer to a registered importer;
in the Vehicle Safety Act. TMA, retroactive certification for such a receive certification; and then returned to the
B. Canadian-Domiciled Commercial large number of vehicles would be both vehicle fleet. Depending on the length of time
costly and time-consuming. Since these required, the motor carrier may have to lease
Motor Vehicles replacement equipment. Presumably manufacturers,
vehicles are already certified to the and certainly registered importers, would charge a
1. Volume of the U.S.-Canadian Cross- substantially similar CMVSSs and are fee for service.
Border Trade already operating in the U.S. without a CTA further argued that ‘‘since carriers do not
Canada and the U.S. have the largest U.S. certification label, TMA argued that segregate their fleet into ‘domestic’ and
‘international’ equipment, from a practical
bilateral trade relationship in the world, the increase in safety benefits that result standpoint, all equipment in fleets with cross-
with the vast majority of goods exported from retroactive certification would be boarder operations would fall under the proposed
from each country being carried via minimal at best. labeling requirements.’’

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important to note that the roadside inspection facility. Thus, FMCSA and the total. Virtually all of the ‘‘Mexico—
inspection data are not statistically State inspectors focus their inspections all’’ inspections were performed on
representative of all commercial motor on vehicles thought to have an above short haul drayage operations during
vehicles, since States typically select average likelihood of having safety which Mexican-domiciled vehicles
commercial motor vehicles for problems. Further, the number of enter the U.S. not farther than the
inspection based upon the operating inspections performed on Mexico- commercial zone along the border.
motor carrier’s safety record, as well as domiciled commercial motor vehicles, Those vehicles are typically older than
indicators of potential safety problems particularly long-haul commercial the Mexican-domiciled vehicles used in
noted when a vehicle enters an motor vehicles, is a minute fraction of long haul operations.

OUT-OF-SERVICE RATES BY COUNTRY OF DOMICILE


Percentage
Vehicle Vehicle of total vehi-
Total number inspections inspections cle inspec-
of vehicle with a with an out- tions with an
inspections FMCSR of-service out-of-service
violation violation 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 significant differences between the However, according to information


Motor Vehicles applicable manufacturing standards of provided by the TMA, U.S.
the United States and the European manufacturers or their affiliates provide
Our understanding is that the
Union. It is unlikely that a vehicle built the majority of the heavy trucks
commercial motor vehicles
by a European manufacturer to the domiciled in Mexico.4 According to the
manufactured in Mexico are produced
European standards would have all the
either by subsidiaries of American
companies such as Freightliner and safety equipment needed to comply 4 The rest are either produced by Scania or are

with either the FMCSRs or the FMVSSs. built in two or more stages, with the chassis
International, or by the European-based manufactured by a U.S. manufacturer and a
company Scania. There are currently Continued

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TMA,5 U.S. manufacturers have been False certification subjects the carrier to the U.S. comply with this requirement.
building their Mexican-domiciled suspension or revocation of its license The question here is whether the word
vehicles in conformity with the FMVSSs to operate in the United States. (49 CFR ‘‘import,’’ as used in this statute,
since the mid to late 1990s, and over Part 365) necessarily applies to commercial motor
50,000 U.S.-certified heavy trucks have Second, enforcement through the vehicles that may be used temporarily
been sold in the Mexican market since Federal Motor Carrier Safety in the United States and that are subject
1993. KenMex, a subsidiary of Paccar Regulations focuses on real world, to an alternative regulatory program
Inc., began affixing U.S. certification operational safety and incorporates the designed to ensure the vehicles operate
labels to all vehicles built for the various FMVSS applicable through the safely on the U.S. roads.
Mexican market that met all applicable useful life of the vehicle.7 FMCSA will After reviewing the various
U.S. safety standards in that year. continue to focus on assessing comments, all of which raised concerns
International, Freightliner, and Volvo compliance with the FMCSRs, including regarding the practical application of
began certifying most or all of their those regulations that cross reference the proposed definition of the term
vehicles to the FMVSSs in 1996, 1997, the FMVSSs (e.g., lamps and reflectors, ‘‘import’’ as used in the Vehicle Safety
and 1998, respectively. TMA estimates air brake systems [including antilock Act, we decided to re-examine some of
that approximately 4,500 additional brake systems], rear impact guards on the basic assumptions made in the three
heavy trucks produced by these trailers, conspicuity treatments on truck documents that supported the agency’s
manufacturers were built in accordance tractors and trailers, emergency exits on 1975 interpretation. We have delved
with then applicable U.S. safety buses, etc.). more thoroughly into the language of
standards, although not labeled as Third, FMCSA may use Vehicle the entire Vehicle Safety Act, as well as
such.6 Identification Numbers (VINs) coupled Congress’ intent vis-á-vis the treatment
The information provided by TMA with VIN information obtained from of commercial motor vehicles under the
members provides sufficient assurance vehicle manufacturers, as well as other Act. Additionally, we decided to
that a substantial number of Mexican- available information, when necessary reevaluate the existing case law relevant
domiciled vehicles originally built to to check whether vehicles were to the use of the term ‘‘import’’ outside
the Federal motor vehicle safety originally built to the FMVSSs. of the context of tariff law to see
standards will be able to engage in We have concluded that the whether and how other statutes define
cross-border trade between the U.S. and incorporation of numerous FMVSS into the term. Finally, we looked at
Mexico. the FMCSRs, combined with the various additional factors and in additional
certification and inspection procedures contexts that were not considered in
V. FMCSA’s Enforcement Policy developing the 1975 interpretation. We
being adopted by FMCSA, will better
After carefully reviewing the ensure the operational safety of believe the term ‘‘import’’ is subject to
comments filed in response to the commercial motor vehicle on the public various interpretations, of which the
FMCSA and NHTSA proposals, roads than a program of retroactive agency’s 1975 interpretation is but one.
including the potential for fraud that certification potentially fraught with We do not believe it is the only
was noted in the proposals, the fraud. Accordingly, we have determined reasonable interpretation. Accordingly,
Department has developed a more that the regulatory scheme proposed in based on the comments we have
effective approach for ensuring that March 2002 would serve no meaningful received, and our research and
commercial motor vehicles were built to evaluation, we have decided against
safety function and are withdrawing the
the FMVSS (or the very similar adding a definition of the term in the
proposal for retroactive certification and
Canadian motor vehicle safety Code of Federal Regulations, and we
record keeping.
standards) and operate safely in the have decided to withdraw the agency’s
United States. Rather than relying on VI. NHTSA’s Interpretation of the 1975 interpretation.
retroactive labelling, FMCSA is Import Prohibition in the Vehicle Safety
A. NHTSA’s 1975 Interpretation
continuing and reinforcing its program Act
The proposed interpretive rule was
focused on operational safety In addition to proposing a regulatory based, in large part, on the analyses
requirements applicable to current scheme of retroactive labelling, the contained in the 1975 letter from
conditions. agency proposed including in the Code NHTSA’s Administrator, James Gregory,
First, FMCSA requires Mexican- of Federal Regulations a definition of to the Canadian Trucking Association
domiciled carriers applying to operate the word ‘‘import’’ based on a 1975 (1975 letter) and in an internal 1975
in the United States to certify in their interpretive memo. The word ‘‘import’’ legal memorandum that preceded that
applications that their vehicles were appears in 49 U.S.C. 30112, which letter. (The 1975 letter and
manufactured or retrofitted in prohibits a motor vehicle from being memorandum were placed in the docket
compliance with the FMVSSs placed into interstate commerce or for the NPRM.) Both the 1975 letter and
applicable at the time they were built. imported into the U.S. unless it is the legal memorandum concluded that
certified as complying with the FMVSS entrances of Canadian-domiciled
Mexican final stage manufacturer completing the applicable at the time. NHTSA operates commercial motor vehicles into the
manufacturing process. It is doubtful that any of an extensive Registered Importer
these vehicles would or could be certified to the United States were importations under
FMVSSs. program to ensure that vehicles the Vehicle Safety Act and were not
5 A letter from TMA providing a breakdown of the imported for sale and permanent use in subject to any exceptions under that
Mexican heavy truck market is in the docket. Act. The letter was issued in response
Docket NHTSA–2004–11593–22. 7 We note that a label certifying compliance with
6 We believe that the vast majority of Mexican- performance standards applicable to lights, brakes
to a request by the Canadian Trucking
domiciled vehicles engaged in U.S. long haul traffic and other wear items does not ensure real world Association that Canadian-domiciled
either carry the label or were originally built to then safety in the absence of the FMCSRs, especially commercial motor vehicles be excluded
applicable U.S. standards. Those potentially not with regard to vehicles built many years ago. The from the requirements of FMVSS No.
originally built to U.S. standards are generally used American public is better protected by the FMCSRs
only in the short haul drayage operation within the than solely through a label indicating that a
121, Air brake systems. At the time,
commercial zone. As noted earlier, FMCSA and commercial motor vehicle had originally been built Canada did not have a corollary
state inspections currently focus on these vehicles. to certain manufacturing performance standards. standard.

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In concluding that Canadian vehicles overall purpose of the Vehicle Safety process of bringing foreign goods into a
were imports within the meaning of the Act, relying exclusively on the analysis country’’ (Black’s Law Dictionary,
Vehicle Safety Act, the agency proffered in 1975. We did not revisit the Seventh Edition, 1999).
interpreted the term ‘‘import’’ in the original analysis of whether the Vehicle
1. Import—Illegal Goods Definition
former section 108(a)(1) of the Act (now Safety Act was in fact akin to the
codified at 49 U.S.C. 30112(a)(1)) when statutes underlying the cases relied on Courts have broadly defined the term
read in conjunction with the in issuing the original interpretation, or ‘‘import’’ in cases involving prohibited
exemptions provided in section whether other analyses might be more products that the government has
108(b)(4). Section 108(a)(1) stated that: applicable. seized. An example is Cunard v. Mellon,
262 U.S. 100 (1929), the case primarily
No person shall manufacture for sale, sell, B. Possible Alternative Interpretations of
offer for sale, or introduce or deliver for
relied upon by NHTSA in its 1975
the Import Prohibition analysis as supporting its ‘‘plain
introduction in interstate commerce, or
import into the United States, any motor The term ‘‘import’’ in a statute may be language’’ approach. The case addressed
vehicle or item of motor vehicle equipment interpreted differently based upon the an interpretation of the National
manufactured on or after the date any intent of Congress in using the term. Prohibition Act, which prohibited the
applicable Federal motor vehicle safety When Congress does not specifically manufacture, sale and transportation,
standard takes effect under this title unless define a particular term, its meaning importation, and exportation of alcohol
it is in conformity with such standard except should be construed in such a way as to in or from any U.S. territory other than
as provided in subsection (b) of this section. further the goals that Congress was direct transport through the Panama
Section 108(b)(3) stated that motor seeking to achieve when enacting the Canal Zone. The statute was enacted in
vehicles or equipment offered for law. See Barnhart v. Walton, 122 S. Ct. response to passage of the Eighteenth
importation in violation of section 1265,1270 (2002); United States v. Amendment. The Court determined that
108(a)(1) would be refused admission Haggar Apparel Co., 526 U.S. 380,392, the National Prohibition Act’s criminal
into the United States under joint 119 S. Ct. 1392, 1398 (1999), citing prohibition on bringing alcohol into the
regulations to be issued by the Secretary Nations Bank of N.C.N.A. v. Variable United States (including its territorial
of Treasury and the Secretary of Annuity Life Ins. Co., 513 U.S. 251, 257, waters) required a broad definition of
Commerce. Under an exception in 115 S. Ct. 810, 813–814 (1995). the term ‘‘import’’ as used in the statute,
section 108(b)(3), those regulations Congress’ stated goal in enacting the since such a reading ‘‘better comports
could authorize imports as long as the Vehicle Safety Act was ‘‘to reduce traffic with the object to be attained,’’ i.e., the
vehicles were subsequently brought into accidents and deaths and injuries total ban on alcoholic beverages in the
conformity with all applicable safety resulting from traffic accidents. 49 United States other than those liquors
standards, but otherwise the vehicles U.S.C. 30101. ‘‘obtained before the act went into effect
would have to be exported or The statute should not be viewed in and kept in the owner’s dwelling for use
abandoned to the United States. The isolation, but rather in conjunction with therein by him, his family, and his bona
exception did not specify that the other, relevant statutes. See Kokoszka v. fide guests.’’
regulations only address those vehicles Belford, 417 U.S. 642, 650, 94 S.Ct. Similar analysis can be found in more
imported for sale or resale, although it 2431, 2436 (1974), citing Brown v. recent cases interpreting the criminal
is unlikely that anyone would so modify Duchesne, 60 U.S. 183, 194 (1856). prohibition on ‘‘importation’’ of
a vehicle unless it were to be Commercial motor vehicles are subject controlled substances (e.g., heroin,
permanently domiciled in the United to regulation under both the Vehicle morphine, and cocaine), where
States. Section 108(b)(4) authorized the Safety Act (codified as 49 U.S.C. ‘‘import’’ is expressly and broadly
issuance of joint regulations that would Chapter 301, Motor Vehicle Safety) and defined by statute as ‘‘any bringing in or
permit the temporary importation of 49 U.S.C. Chapter 311, Commercial introduction of such article into any
used motor vehicles.8 Motor Vehicle Safety. One of the area (whether or not such bringing in or
The agency noted that the exceptions Congressionally stated purposes for introduction constitutes an importation
for non-complying imports in section Chapter 311, Subchapter III, Safety within the meaning of the tariff laws of
108(b)(3) of the Act and temporary Regulation, is ‘‘to promote the safe the United States).’’ 9 (21 U.S.C. 951 et
importation of personal vehicles in operation of commercial motor seq.) (See generally, U.S. v. Catano, 553
section 108(b)(4) of the Act would not vehicles.’’ 49 U.S.C. 31131(a). The F.2d 497 (5th Cir. 1975); U.S. v. Lewis,
be needed if foreign-domiciled vehicles Federal Motor Carrier Safety 676 F.2d 508 (11th Cir. 1982); and U.S.
that were not sold in the United States Administration implements this statute v. Perez, 776 F. 2d 759 (9th Cir. 1985).)
were not considered imports under in large part through enforcement of the
section 108(a). The language of the Federal Motor Carrier Safety 2. Import—Definition Used in
exceptions is the strongest evidence that Regulations. Determining Whether an Item Brought
Congress intended the term ‘‘import’’ to In the NPRM, the agency referred to Into the U.S. Is Subject to Tariff
apply to all vehicles brought into the a dictionary definition of the word Since 1926, courts have consistently
United States. ‘‘import,’’ meaning ‘‘to bring in held that in tariff cases, unless it clearly
In our NPRM proposing the formal (merchandise, commodities, workers, appears that Congress intended
adoption of the 1975 interpretation, we etc.) from a foreign country for use, sale,
relied on what we then believed was a processing, reexport or services’’ 9 See also, 16 U.S.C. 1151, et seq., generally

‘‘plain meaning’’ of the term when (Random House Compact Unabridged prohibiting importation, sale, or possession of
Dictionary, Special Second Edition). North Pacific fur seal skins; 16 U.S.C. 1531, et seq.,
considered in conjunction with the generally prohibiting importation, sale, or
The dictionary also defines the term as possession of endangered fish and wildlife; and 16
8 As explained in the House Report on the Act, ‘‘the act of importing or bringing in; U.S.C. 2401, et seq., generally prohibiting
the purpose of section 108(b)(4) was to importation, as of goods from abroad.’’ importation, sale, or possession of birds, mammals,
‘‘accommodate foreign tourists who may bring their Black’s Law Dictionary also provides or plants native to Antarctica, where ‘‘import’’ is
vehicles with them on visits to this country and defined by statute as bringing into the jurisdiction
also to permit import of certain vehicles for
slightly differing definitions: ‘‘a product of the United States, regardless of whether such act
diplomatic use. H. Rep. 1776, 89th Cong., 2d Sess., brought into a country from a foreign constitutes an importation within the meaning of
p.24. country where it originated’’ versus ‘‘the customs law.

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otherwise, the term ‘‘importation’’ prohibition, the EPA decided to adopt commercial motor vehicles were not
means the bringing of goods within the the approach contained in the HTSUS. subject to entry under the existing Tariff
jurisdictional limits of the U.S. with the Under the HTSUS, vessels used in Schedule when the Vehicle Safety Act
intent to unlade. However, the courts international trade or commerce and was passed, any prohibition on allowing
have held that this definition is not personal pleasure craft brought into the non-compliant commercial motor
literally applicable to a seagoing vessel territorial United States by non- vehicles into the United States could
or yacht entering the United States residents are admitted without formal not be enforced at the border without
under its own power. Instead, they have customs consumption entry or the significantly amending those regulations
given deference to a Treasury payment of a duty. EPA said that its in a manner inconsistent with the Tariff
Department ruling cited in Estate of Lev approach was consistent with the Act of 1930.13
H. Prichard v. United States, 43 CCPA Treasury Department ruling cited in
85, 87–88, CAD 612 (1956), which 2. Treatment of Canadian-Domiciled
Prichard discussed above. (See
stated that ‘‘if coming into this country Commercial Motor Vehicles
discussion at 64 FR 73300, 73302.) 11
temporarily as carriers of passengers or None of the three previous NHTSA
merchandise, they [vessels] are not C. Factors Not Considered in the 1975 documents addressed the fact that
subject to customs entry or the payment Interpretation or NPRM throughout all the different legislative
of duty, but if brought into the United 1. U.S. Customs Regulations in Effect in activities addressing vehicles brought
States permanently they are to be 1966 into the United States, Canadian-
considered and treated as imported domiciled commercial motor vehicles
Neither the documents NHTSA relied
merchandise.’’ The court said that the were allowed to operate in the cross-
upon when proposing an interpretive
question as to whether a vessel is border trade without being subject to
rule nor the preamble of that notice
brought into the United States formal entry. In 1966, when the Vehicle
addressed the U.S. Customs regulations
‘‘permanently’’ must be determined on Safety Act was enacted, both the
in effect when the Vehicle Safety Act
the basis of intent. (See generally, Mexican and Canadian borders were
was enacted. The 1963 Tariff Schedule
American Customs Brokerage Co., Inc. open. In 1988, when Congress passed
specifically excluded commercial motor
v. United States, 375 F.Supp. 1360, the Imported Vehicle Safety Compliance
vehicles from entry requirements so
1366 (C.C.P.A., 1974).) Act of 1988, the Canadian border was
long as the vehicles did not engage in
open. In 2001, when the Murray-Shelby
3. Import—Use of Tariff Definition in local traffic in the United States.12 This
provisions of the 2002 DOT
Non-Tariff Context exclusion was adopted as part of the
Appropriations Act were enacted, the
A third alternative is that contained in implementation of the Tariff Act of
Canadian border was open.14 None of
the Harmonized Tariff Schedule of the 1930, which provided that ‘‘vehicles
the legislative histories of any of these
United States (HTSUS), even though the and other instruments of international
statutes indicate intent on the part of
underlying statutory concern is not traffic, of any class specified by the
Congress to change the operating status
tariff-related. In 1999, the Secretary of the Treasury, shall be
of the Canadian motor carriers, even
Environmental Protection Agency (EPA) granted the customary exceptions from
though there was no basis to believe the
took this approach in a final rule the application of customs laws to such
foreign-domiciled commercial motor
establishing an emission control extent and subject to terms and
vehicles were fully compliant with the
program for certain new marine diesel conditions as may be prescribed in
requirements of all applicable FMVSSs.
engines pursuant to the Clean Air Act regulations or instructions of the
We have been unable to determine
(64 FR 73300, December 29, 1999). The Secretary of the Treasury.’’ (19 U.S.C.
how many Mexican- and Canadian-
final rule is codified at 40 CFR Part 94. 1322(a)). Because the foreign-domiciled
domiciled motor carriers were operating
One of the issues addressed by the final 11 The Environmental Protection Agency (EPA) in the trans-border trade when the
rule was how the application to ‘‘new recently considered whether it should amend its Vehicle Safety Act was initially enacted,
marine engines’’ would affect the interpretation of ‘‘new marine engines’’ to include although the specific reference to these
engines on foreign vessels that were engines in foreign-flag vessels, regardless of vehicles in the 1963 Tariff Schedule (28
engaged in international trade. The EPA whether the presence of those vessels in U.S. ports
would be treated as an import under HTSUS.
FR 14663, December 31, 1963) indicates
specified that, with respect to imported Proposed rule; 67 FR 37548; May 29, 2002. It that at least some foreign-domiciled
engines, ‘‘new marine engine’’ means an expressed concerns that the emissions of foreign- commercial motor vehicles were being
engine that is not covered by a flagged commercial vessels may contribute used to transport cargo and passengers
certificate of conformity at the time of significantly to problems in the U.S. since U.S.-flag
vessels only account for 6.7% of all vessels entering
to and from the United States.
importation, and that was manufactured U.S. ports. In the final rule, EPA did not decide According to the statistics gathered by
after the starting date of the emission whether it had the discretion to interpret new to Transport Canada 15 regarding
standards which are applicable to such include foreign vessels. It indicated that deferring international carrier activities in 1984, a
engine (or which would be applicable to this decision may help facilitate the adoption of
more stringent consensus international standards,
total of 941 Canadian motor carriers
such engine had it been manufactured and noted that a new set of internationally
for importation into the United States). negotiated marine diesel engine standards would 13 U.S. Customs regulations currently provide that

It then specified prohibitions against apply to engines on all vessels, regardless of where trucks, buses and other vehicles in international
certain acts by all persons with respect they are flagged. Final rule; 68 FR 9746, 9759; traffic shall be subject to the treatment specified in
February 28, 2003. In any event, the circumstances part 123 (19 CFR 10.41(a)), and that they may be
to the engines covered by the addressed by EPA, i.e., the application or non- admitted without formal entry or the payment of
regulation.10 application of a solitary Federal regulatory program, duty (19 CFR 123.14(a)).
For the purposes of determining what are not closely analogous to those before this 14 In 1988 and 2001, the Mexican border was

constitutes an importation within the agency. open to Mexican-domiciled carriers operating only
12 The prohibition against engaging in local traffic in the border zones and to such carriers that had
‘‘new marine engine’’ definition, and obtained authority to operate beyond the border
was the result of cabotage laws in effect at the time.
consequently an importation under the These laws were designed to prevent foreign zones before the imposition of the 1982
carriers from engaging in the purely domestic moratorium.
10 40 CFR Part 94, Subpart I allows for some transport of goods or passengers. Corollary laws 15 Statistics Canada, Trucking in Canada, 1984,

temporary importations with specified bond applied to foreign-owned railroads, airlines and Minister of Supply and Services Canada, 1986, table
requirements (see 40 CFR 94.804). merchant vessels. 2.7.

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Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50287

were engaged in the U.S.-Canada cross- standards must be practicable (both equivalent to criminally illegal illicit
border trade at that time. These carriers technically and financially) and must drugs and contraband. The public
owned or operated, in the aggregate, meet the need for motor vehicle safety comments we received have led us to
72,441 commercial motor vehicles. (49 U.S.C. 30111). Additionally, the review and consider more fully the
Thus, when Congress amended the Vehicle Safety Act does not directly underlying basis for the 1975 memo,
Vehicle Safety Act in 1988 to address regulate used vehicles. The authority and therefore the NPRM. Our more
specifically concerns it had with the rests with the states, subject to the thorough and careful review leads us to
importation of non-compliant motor Vehicle-in-Use Inspection Standards (49 conclude that the proposed definitional
vehicles, the United States and Canada CFR Part 570). Likewise, while the regulation does not adequately reflect
enjoyed an active trade relationship in Vehicle Safety Act prohibits motor the current regulatory environment and,
which shipping via commercial motor vehicle repair businesses from making in light of FMCSA’s program to ensure
vehicles clearly played a major role. Yet required safety equipment inoperative operational safety, would provide no
the legislative history associated with (49 U.S.C. 30122), it does not prohibit additional safety benefit. Accordingly,
the 1988 amendments never raises the individuals from modifying their own we have decided to withdraw the
prospect that Congress was concerned vehicles in whatever manner they proposed definitional regulation.
about whether the Canadian commercial choose.
motor vehicles posed a safety risk while Additionally, unlike the narcotics We also believe it is important to note
operating in the United States. Certainly laws, possession of non-compliant that while NHTSA issued its
Congress would have been aware that at motor vehicles has never been illegal. interpretation of the word ‘‘import’’ in
least some percentage of goods imported Indeed, section 108(b), as originally 1975 in the context of addressing
to the United States from Canada were enacted, provides for several whether Canadian-domiciled
transported via truck, since President circumstances under which the sale, commercial motor vehicles operating in
Reagan had lifted the Congressional delivery, introduction, or importation of the United States must meet the
moratorium on grants of new operating non-compliant vehicles are not requirements of NHTSA’s safety
authority for Canadian carriers as prohibited. As noted above, there is no standard on air brake systems, as a
recently as December 1982. prohibition against the sale, offer for practical matter NHTSA has never
sale, or introduction or delivery of non- required vehicles with CMVSS labels to
3. FY 2002 DOT Appropriations Act compliant used motor vehicles. The also carry FMVSS labels. Indeed, the
Finally, as noted by the comments on prohibition does not apply to vehicles comments indicate that the primary
this rulemaking, by 2001, when the that are imported into the U.S. pursuant burdens associated with retroactive
provisions of the 2002 DOT to joint regulations issued by Customs certification would fall on Canadian-
Appropriations Act governing Mexican and NHTSA. Finally, it does not apply domiciled commercial motor carriers,
motor carriers were enacted, the United to vehicles labeled for export. The 1988 which have long been operating safely
States and Canada enjoyed the largest amendments further expanded the in the U.S. using commercial vehicles
trading relationship in the world, with number of exceptions to the general that were certified to the CMVSS and
most of the cargo coming into the prohibition by adding an exemption for also met the FMCSRs.
United States via commercial motor vehicles that are at least 25 years old. In practice, NHTSA has generally
vehicles that were not certified as The NPRM was proposed to provide
sought to ensure that non-U.S.-
compliant with the FMVSSs. Indeed, context to the proposals for retroactive
domiciled commercial motor vehicles
the concern over compliance with all certification and record keeping. These
applicable FMVSSs was not raised meet the same safety standards as U.S.
proposals did not consider whether, as
during the debates and hearings on the we have learned through the benefit of vehicles (or very similar standards) by
safety of Mexican commercial motor notice and comment rulemaking, other means, especially working with
vehicles. Rather, Congress’ stated alternative approaches can better serve FMCSA. We note, for example, that in
concern was with the level of the nation’s safety needs. The FMCSA’s responding to requests for interpretation
maintenance of the Mexican vehicles. program of enforcing its on-the-road in the late 1990’s as to whether
Based on consideration of both the operational standards, combined with Canadian carriers can operate in the
factors addressed by the previous the processes it is establishing to check U.S. without the antilock brake systems
documents interpreting the term that vehicles were originally built to required by NHTSA’s safety standard,
‘‘import,’’ as well as the other factors then applicable U.S. standards, satisfies NHTSA’s responses referred to the
articulated above, we have determined the stated Congressional concern over Federal motor carrier safety regulations
that the agency’s previous interpretation the maintenance of Mexican trucks rather than to our 1975 interpretation.16
of the importation restriction on non- better than any program of retroactive Also, NHTSA and Transport Canada
certified foreign-domiciled commercial labelling. have a close working relationship.
motor vehicles may be overly The NPRM proposing to add to the Thus, the approach discussed
encompassing and place unreasonable Code of Federal Regulations a definition elsewhere in this document that the
restrictions on foreign-based motor of ‘‘import’’ relied heavily on the 1975 Department will be following for
carriers. Unlike statutes related to the memo and added little analysis. We did ensuring that commercial vehicles were
regulation and control of narcotics, the not consider whether the overall built to the FMVSS (or the very similar
Vehicle Safety Act does not require, or regulatory scheme applicable to CMVSS) and operate safely in the
even allow, NHTSA to eliminate commercial motor vehicles would alter United States is consistent with our
entirely the possibility of motor vehicle our conclusory statement about the longstanding practices.
crashes in this country. While the purposes of the Vehicle Safety Act, nor
agency was directed to establish motor whether it should affect our 16 See interpretation to Mr. Ted Reiniger, June 2,

vehicle safety standards, those proclamation that such vehicles are 1998; to Mr. Barrie Montague, June 1, 1998.

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50288 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules

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 dis- —Requires the ISO brake failure —Requires the word ‘‘brake’’ with Safety difference is inconsequen-
plays. symbol if a common brake mal- minimum height if a common tial.
FMVSS No. 101, Controls and dis- function indicator is used. brake malfunction indicator is
plays. used.

CMVSS No. 102, Transmission No significant differences Safety difference is inconsequen-


control functions. tial.
FMVSS No. 102, Transmission
shift lever sequence, starter
interlock, and transmission brak-
ing effect.

CMVSS No. 103, Windshield No significant differences Safety difference is inconsequen-


defrosting and defogging. tial.
FMVSS No. 103, Windshield
defrosting and defogging sys-
tems.

CMVSS No. 104, Windshield wip- No significant differences Safety difference is inconsequen-
ing and washing system. tial.
FMVSS No. 104, Windshield wip-
ing and washing system.

CMVSS No. 105, Hydraulic and —Requires statement to the same —Requires specific working for Safety differnce is inconsequen-
electric brake systems. effect as U.S. for brake fluid brake fluid reservoir labeling. tial.
FMVSS No. 105, Hydraulic and reservoir labeling. —Requires the word ‘‘ABS’’,
electric brake systems. —Requires the ISO ABS symbol ‘‘Anti-lock’’ or ‘‘Antilock’’ with
for indicating ABS malfunction minimum height for indicating
ABS malfunction.

CMVSS No. 106, Brake hoses ...... No significant differences Safety difference is inconsequen-
FMVSS No. 106, Brake hoses. tial.

CMVSS No. 108, Lighting system —Requires Daytime running lights Allows, but does not require day- —CMVSS on daytime running
and retro-reflective devices. —Allows European headlamps. time running lights. lights.
FMVSS No. 108, Lamps, reflective —Allowance of European
devices, and associated equip- headlamps is a significant dif-
ment. ference.

CMVSS No. 111, Mirrors ............... No significant differences Safety difference is inconsequen-
FMVSS No. 111, Rearview mir- tial.
rors.

CMVSS No. 113, Hood latch sys- No significant differences Safety difference is inconsequen-
tem. tial.
FMVSS No. 113, Hood latch sys-
tem.

CMVSS No. 116, Hydraulic brake No significant differences Safety difference is inconsequen-
fluids. tial.
FMVSS No. 116, Motor vehicle
brake fluids.

CMVSS No. 119, Tires for vehicles Requires maple leaf certification Requires DOT marking ................. Saftey difference is inconsequen-
other than passenger cars. marking. tial.
FMVSS No. 119, New pneumatic
tires for vehicles other than pas-
senger cars.

CMVSS No. 120, Tire selection No significant differences Safety difference is inconsequen-
and rims for vehicles other than tial.
passenger cars.
FMVSS No. 120, Tire selection
and rims for motor vehicles
other than passenger cars.

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Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50289

TABLE 1.—COMPARISON OF CMVSS AND FMVSS REQUIREMENTS FOR TRUCKS AND BUSES OVER 4,536 KG (10,000 LB)
GVWR—Continued
Title CMVSS FMVSS Most stringent

CMVSS No. 121, Air brake sys- Requires the ISO ABS symbol for Requires the letters ‘‘ABS’’ or Safety difference is inconsequen-
tems. indicating ABS malfunction. ‘‘Antilock’’ with minimum height tial.
FMVSS No. 121, Air brake sys- for indicating ABS malfunction.
tems.

CMVSS No. 124, Accelerator con- No significant differences Safety difference is inconsequen-
trol systems. tial.
FMVSS No. 124, Accelerator con-
trol systems.

CMVSS No. 131, School bus pe- No significant differences Safety difference is inconsequen-
destrian safety devices. tial.
FMVSS No. 131, School bus pe-
destrian safety devices.

CMVSS No. 203, Driver impact Requirement that clothing and Requirement that clothing and CMVSS.
protection. jewelry cannot catch on steer- jewelry cannot catch on steer-
FMVSS No. 203, Impact protection ing wheel. ing wheel does not apply to ve-
for the driver from the steering hicles of this class.
control system.

CMVSS No. 205, Glazing mate- References more recent version Only references older versions of Safety difference is inconsequen-
rials. of ANSI Z26 test requirement, ANSI Z26. tial.
FMVSS no. 205, Glazing mate- but allows older versions to be
rials. followed.

CMVSS No. 207, Anchorage of All seats must be tested as an as- Allows separate testing of seating CMVSS.
seats. sembly of seat and seat base and seat base tested in a test
FMVSS No. 207, Seating systems. when installed in vehicle. fixture.

CMVSS No. 208, Occupant protec- All vehicles must have seat belt ... Allows for crash testing in lieu of Safety difference is inconsequen-
tion in frontal impact. seat belts in vehicles over tial.
FMVSS No. 208, Occupant crash 4,536 kg.
protection.

CMVSS No. 209, Seat belt assem- —Includes a colorfastness test .... ....................................................... Safety difference is inconsequen-
blies. —Requires label stating seat belt tial.
FMVSS No. 209, Seat belt assem- assembly must be installed in
blies. vehicle with an air bag if load
limiters are used.

CMVSS No. 210, Seat belt assem- Different requirements for seat Provides an exemption from seat Safety difference is inconsequen-
bly anchorages. belt anchorage location for ad- belt anchorage installation, tial.
FMVSS No. 210, Seat belt assem- justable seats with seat travel strength, and location require-
bly anchorages. greater than 70 mm than for ments if certified to unbelted
seats with seat travel equal to barrier test in FMVSS No. 208.
or less than 70 mm.

CMVSS No. 217, Bus window re- Requires push-out windows on all Requires either push-out windows Safety difference is inconsequen-
tention, release and emergency buses other than school buses. or sliding windows. tial.
exits.
FMVSS No. 217, Bus emergency
exits and window retention and
release.

CMVSS No. 301.1—LPG Fuel sys- ....................................................... No FMVSS corollary ..................... CMVSS.
tem integrity.

CMVSS No. 301.2—CNG fuel sys- —Applies to all vehicles ............... —Only regulated vehicles over CMVSS.
tem integrity. —Fuel container must remain at- 4,536 kg are school buses.
FMVSS No. 303, Fuel system in- tached to vehicle at minimum of —No environmental testing re-
tegrity of compressed natural one attachment point. quirements.
gas vehicles/FMVSS No. 304, —Adopts environmental testing
compressed natural gas fuel requirements of CSA B51 or
container integrity. ANSI/AGA–NGV 2.

CMVSS No. 302, Flammability ...... No significant differences Safety difference is inconsequen-
FMVSS No. 302, Flammability of tial.
interior materials.

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50290 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules

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 —Requires pole trailers to have Requires red and white reflective —CMVSS on pole trailers.
and retro-reflective devices. reflective markings. tape. —FMVSS on reflective tape.
FMVSS No. 108, Lamps, reflective —Allows colors of reflective tape
devices, and associated equip- other than red and white mark-
ment. ings (e.g., all white or all or-
ange).

CMVSS No. 119, Tire for vehicles Requires maple leaf certification Requires DOT marking ................. Safety difference is inconsequen-
other than passenger cars. marking. tial.
FMVSS No. 119, Tire for vehicles
other than passenger cars.

CMVSS No. 120, Tire selection No significant differences. Safety difference is inconsequen-
and rims for vehicles other than tial.
passenger cars.
FMVSS No. 120, Tire selection
and rims for motor vehicles
other than passenger cars.

CMVSS No. 121, Air brake sys- No significant differences. Safety difference is inconsequen-
tems. tial.
FMVSS No. 121, Air brake sys-
tems.

FMVSS No. 223, Rear impact No CMVSS corollary. ................... Trailers must be equipped with FMVSS
guards/FMVSS No. 224, Rear rear impact guard having
impact protection. strength requirement of 100kN
and 5.65 kJ of energy absorp-
tion 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

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