Service of Process on Foreign Manufacturers and Importers, 45565-45570 [05-15561]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 70, Number 151 (Monday, August 8, 2005)]
[Rules and Regulations]
[Pages 45565-45570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-15561]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 551

[Docket No. NHTSA-2005-21972]
RIN 2127-AJ69


Service of Process on Foreign Manufacturers and Importers

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule amends NHTSA's regulation on service of 
process on foreign manufacturers and importers to clarify existing 
regulatory requirements by rephrasing the regulation in a plain 
language, question and answer format and inserting an appendix 
containing a suggested designation form for use by foreign 
manufacturers and their agents. It also will enhance communications 
between foreign manufacturers and the agency by spelling out existing 
requirements for providing notice to NHTSA of changes in company name, 
address and product names, and changing the office to which foreign 
manufacturers must submit designation and related documents to reflect 
organizational changes occurring since the regulation was adopted.

EFFECTIVE DATE: This final rule becomes effective October 7, 2005.
    Petitions: Any petitions for reconsideration of today's final rule 
must be received by NHTSA not later than September 22, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. Dana Sade, Office of the Chief 
Counsel, at (202) 366-1834, facsimile (202) 366-3820. You may send mail 
to Ms. Sade at the National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: NHTSA published a rule on December 25, 1968 
that established a procedure for foreign manufacturers, assemblers and 
importers of motor vehicles and motor vehicle equipment (hereinafter 
referred to as ``foreign manufacturers'') to designate an agent for 
service of process in the United States. Over time, NHTSA has found 
that many foreign manufacturers have submitted incomplete designation 
documents containing common errors and omissions. Often NHTSA receives 
designation documents not properly dated or signed, or otherwise 
lacking information necessary to effect a valid designation or 
replacement of agent under the regulation. NHTSA has found also that 
foreign manufacturers often fail to provide adequate notice to NHTSA of 
changes in company name, address and product names or trademarks.
    This document clarifies existing regulatory requirements by 
rephrasing 49 CFR part 551, subpart D in a plain language, question and 
answer format and inserting an appendix containing a suggested 
designation form for use by foreign manufacturers and their agents. It 
also will enhance communications between foreign manufacturers and the 
agency by spelling out requirements for providing notice to NHTSA of 
changes in company name, address and product names, marks, or other 
designations of origin. Finally, it changes the NHTSA office to which 
foreign manufacturers must submit documents, as a result of 
organizational changes that have occurred in the agency since the 
regulation was adopted.
    The purpose of the amendments is to make clearer the requirements 
of 49 CFR part 551, subpart D and improve communications between the 
agency and foreign manufacturers, thereby reducing the burdens 
associated with repeated filings to correct common errors. Since they 
are technical amendments only and make no substantive changes to the 
regulation, pursuant to 5 U.S.C. 553(b)(3)(B) prior notice and comment 
are not required.

Statutory Basis for the Final Rule

    Section 110(e) of the National Traffic and Motor Vehicle Safety Act 
of 1966 (49 U.S.C. 30164) requires a foreign manufacturer offering a 
motor vehicle or motor vehicle equipment for importation into the 
United States to designate a permanent resident of the United States as 
its agent upon whom service of notices and processes may be made in 
administrative and judicial proceedings. This final rule revises a 
regulation that implements that statutory requirement at 49 CFR Part 
551, Subpart D.

[[Page 45566]]

Regulatory Analyses and Notices

A. Executive Order 12866, Regulatory Planning and Review

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations about 
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.
    This rule will not have any of these effects and was not reviewed 
under Executive Order 12866. It is not significant within the meaning 
of the DOT Regulatory Policies and Procedures. The effect of this rule 
is not to impose new requirements but to clarify existing regulatory 
requirements and update the address to which foreign manufacturers must 
submit designation and related documents. This rule will not impose any 
additional burden on any person. Rather, by making more clear existing 
regulatory requirements and directing agent submissions to a NHTSA 
office with enhanced document tracking capabilities, it will reduce the 
burden on foreign manufacturers, who now often submit incomplete agent 
documents several times before satisfying the regulation's 
requirements, and also frequently submit such documents to NHTSA 
offices not involved in administering this regulation. The agency 
believes that this impact is minimal and does not warrant the 
preparation of a regulatory evaluation.

B. Environmental Impacts

    We have not conducted an evaluation of the impacts of this rule 
under the National Environmental Policy Act. This rule does not impose 
any change that would result in any impacts to the quality of the human 
environment. Accordingly, no environmental assessment is required.

C. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, we have considered the 
impacts of this rule on small entities (5 U.S.C. 601 et seq.). I 
certify that this rule will not have a significant economic impact upon 
a substantial number of small entities within the context of the 
Regulatory Flexibility Act.
    The following is our statement providing the factual basis for the 
certification (5 U.S.C. 605(b)). This rule will not have any 
significant economic impact on a substantial number of small businesses 
because the rule merely clarifies existing requirements of a final rule 
published on December 25, 1968 and changes the office to which foreign 
manufacturers submit agent documents. Foreign manufacturers and 
importers of motor vehicles and motor vehicle equipment, regardless of 
size, will not be significantly affected because this rule does not 
change the regulatory requirements with which they are required to 
comply. Accordingly, we have not prepared a Final Regulatory 
Flexibility Analysis.

D. Executive Order 13132, Federalism

    E.O. 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.'' E.O. 13132 defines the term ``Policies that have 
federalism implications'' 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 
E.O. 13132, NHTSA may not issue a regulation that has 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, or NHTSA consults with State and local 
officials early in the process of developing the regulation.
    This rule will have no direct effect 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 as specified in E.O. 13132. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule.

E. The Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the costs, benefits and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local or tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually. This rule will not result in additional 
expenditures by State, local or tribal governments or by any members of 
the private sector. Therefore, the agency has not prepared an economic 
assessment pursuant to the Unfunded Mandates Reform Act.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
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. This rule does not impose any new collection of information 
requirements for which a 5 CFR Part 1320 clearance must be obtained. 
DOT previously submitted to OMB and OMB approved the collection of 
information mandated by this regulation in OMB Clearance No. 2127-0040, 
which expires on May 31, 2006.

G. Civil Justice Reform

    Pursuant to Executive Order 12988, ``Civil Justice Reform,'' we 
have considered whether this rule has any retroactive effect. We 
conclude that it will not have such an effect.

H. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make the rule easier to understand?

If you wish to do so, please comment on the extent to which this final 
rule effectively uses plain language principles.

[[Page 45567]]

I. National Technology Transfer and Advancement Act

    Under the National Technology and Transfer and Advancement Act of 
1995 (Pub. L. 104-113), ``all Federal agencies and departments shall 
use technical standards that are developed or adopted by voluntary 
consensus standards bodies, using such technical standards as a means 
to carry out policy objectives or activities determined by the agencies 
and departments.''
    This rule does not implicate any technical standards developed by 
voluntary consensus standards bodies.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
https://dms.dot.gov.

K. Executive Order 13045, Economically Significant Rules 
Disproportionately Affecting Children

    This rule is not subject to E.O. 13045 because it is not 
``economically significant'' as defined under E.O. 12866, and does not 
concern an environmental, health or safety risk that NHTSA has reason 
to believe may have a disproportionate effect on children.

List of Subjects in 49 CFR Part 551

    Designation of an agent for service, Form and content of 
designation, Method of service.

0
For the foregoing reasons, Subpart D of 49 CFR Part 551 is revised to 
read as follows:

PART 551--PROCEDURAL RULES

Subpart D--Service of Process on Foreign Manufacturers and 
Importers

Designation of an Agent for Service of Process

Sec.
551.45 What is the purpose of this subpart?
551.46 Who must comply with this subpart and when?
551.47 Who may serve as an agent for a foreign manufacturer?
551.48 May an official of a foreign manufacturer serve as its agent?
551.49 May a foreign manufacturer replace its agent?
551.50 May more than one foreign manufacturer designate the same 
person as agent?
551.51 May an agent assign performance of its functions to another 
individual or entity?
551.52 How long will a foreign manufacturer's designation of agent 
remain in effect?

Form and Contents of Designation

551.53 What is the required format for a designation?
551.54 What are the required contents for a designation?
551.55 What information must a Designation by Foreign Manufacturer 
contain?
551.56 What information must an Acceptance by Agent contain?
551.57 Who may sign the Designation by Foreign Manufacturer?
551.58 Who may sign the Acceptance by Agent?
551.59 May the same individual sign both the Designation by Foreign 
Manufacturer and Acceptance by Agent?
551.60 When must the Designation by Foreign Manufacturer be signed?
551.61 When must the Acceptance by Agent be signed?
551.62 Where should a foreign manufacturer mail the designation?
551.63 May a foreign manufacturer submit a designation by email or 
facsimile?
551.64 What if designation documents submitted by a foreign 
manufacturer do not comply with this subpart?
551.65 What if a foreign manufacturer changes its name, address or 
product names or marks?

Method of Service of Process

551.66 What is the legal effect of service of process on an agent?
551.67 Where and how may an agent be served?
551.68 What if an agent cannot be served?

    Authority: 49 U.S.C. 30164.

Subpart D--Service of Process on Foreign Manufacturers and 
Importers Designation of an Agent for Service of Process


Sec.  551.45  What is the purpose of this subpart?

    The purpose of this subpart is to establish a procedure for foreign 
manufacturers, assemblers and importers of motor vehicles and motor 
vehicle equipment to designate an agent in the United States on whom 
service of administrative or judicial notices or processes may be made.


Sec.  551.46  Who must comply with this subpart and when?

    (a) All foreign manufacturers, assemblers, and importers of motor 
vehicles or motor vehicle equipment (hereinafter referred to as 
``foreign manufacturers'') must comply with this subpart before 
offering a motor vehicle or item of motor vehicle equipment for 
importation into the United States.
    (b) Unless and until a foreign manufacturer appoints an agent in 
accordance with the requirements of this subpart, it may not import 
motor vehicles or motor vehicle equipment into the United States.


Sec.  551.47  Who may serve as an agent for a foreign manufacturer?

    Only an individual, a domestic firm or a domestic corporation that 
is a permanent resident of the United States may serve as an agent 
under this subpart.


Sec.  551.48  May an official of a foreign manufacturer serve as its 
agent?

    (a) Generally no; an agent must be a permanent resident of the 
United States. Typically officials of foreign manufacturers and 
importers are not United States residents.
    (b) Occasionally an official of a foreign manufacturer also serves 
as an official of a domestic firm or corporation or is a permanent 
resident of the United States. In such cases, the official may serve as 
agent and sign the designation documents both on behalf of the foreign 
manufacturer and as agent. However, the foreign manufacturer must 
submit to NHTSA, along with the designation documents, a letter 
explaining that the individual signing the designation is both an 
official of the foreign manufacturer with authority to appoint an agent 
and a permanent resident of the United States or official of a domestic 
firm or corporation. If NHTSA does not receive an explanatory letter at 
the same time it receives the designation, the agency will deem the 
designation insufficient under this subpart and reject the submission.


Sec.  551.49  May a foreign manufacturer replace its agent?

    (a) Yes, a foreign manufacturer may replace its agent in the same 
way it originally designated the agent. It must submit designation 
documents that meet the form and content requirements identified in the 
following section of this subpart. Until NHTSA receives designation 
documents meeting those requirements or a letter withdrawing an 
existing designation, the individual or domestic corporation originally 
designated will continue to serve as its agent for service of process.
    (b) A foreign manufacturer that has withdrawn but not replaced its 
agent may not continue to import motor vehicles or motor vehicle 
equipment into the United States. In order to do so, it must appoint a 
new agent in accordance with the requirements of this subpart.

[[Page 45568]]

Sec.  551.50  May more than one foreign manufacturer designate the same 
person as agent?

    Yes, any number of foreign manufacturers separately may designate 
the same person as agent.


Sec.  551.51  May an agent assign performance of its functions to 
another individual or entity?

    No, an agent may not assign performance of its functions.


Sec.  551.52  How long will a foreign manufacturer's designation of 
agent remain in effect?

    (a) A designation of agent remains in effect until replaced or 
withdrawn by a foreign manufacturer.
    (b) A foreign manufacturer that has withdrawn but not replaced its 
agent may not continue to import motor vehicles or motor vehicle 
equipment into the United States. In order to do so, it must appoint a 
new agent in accordance with the requirements of this subpart.

Form and Contents of Designation


Sec.  551.53  What is the required format for a designation?

    (a) All documents submitted under this subpart must be:
    (1) Original documents;
    (2) Written in English; and
    (3) Signed in ink.
    (b) For each signature, the document must indicate in English:
    (1) The date of signature; and
    (2) The name and title of the individual who signed the document.
    (c) As long as documents submitted by a foreign manufacturer and 
its agent contain all required information (identified in Sec. Sec.  
551.54, 551.55 and 551.56 below), there is no mandatory format for the 
designation
    (d) NHTSA encourages foreign manufacturers to use the suggested 
designation form set forth in the Appendix to this subpart. If 
completed and executed properly by both a foreign manufacturer and its 
agent, this form will comply fully with the requirements of Sec. Sec.  
551.53 through 551.65.


Sec.  551.54  What are the required contents for a designation?

    The suggested designation form set forth in the Appendix, if 
completed and signed properly by a foreign manufacturer and its agent, 
contains all of the information necessary to create a valid designation 
under this subpart. Specifically, a valid designation must contain:
    (a) A Designation by Foreign Manufacturer; and
    (b) An Acceptance by Agent.


Sec.  551.55  What information must a Designation by Foreign 
Manufacturer contain?

    A Designation by Foreign Manufacturer must contain:
    (a) A statement that the designation is in valid form and binding 
on the foreign manufacturer under the laws, corporate bylaws or other 
requirements governing the making of designations at the place and time 
where it is made;
    (b) The full legal name, principal place of business and mailing 
address of the foreign manufacturer;
    (c) All trade or brand names, marks, logos or other designations of 
origin under which the foreign manufacturer's products will be sold; 
and
    (d) The signature in ink, and the name and title of the official or 
employee signing the designation on behalf of the foreign manufacturer, 
who must have authority to appoint an agent.


Sec.  551.56  What information must an Acceptance by Agent contain?

    An Acceptance by Agent must contain:
    (a) The full legal name, mailing address and telephone number of 
the agent;
    (b) A statement that the agent accepts the designation and 
understands that (s)he may not assign performance of the agent's 
functions under the designation to another person or entity, and that 
the designation shall remain in effect until it is withdrawn or 
replaced by the foreign manufacturer;
    (c) The signature in ink of the agent, or an official or employee 
of the domestic firm or corporation serving as the agent, who must 
authority to sign for the firm or corporation; and
    (d) The name and title of the individual signing the acceptance.


Sec.  551.57  Who may sign the Designation by Foreign Manufacturer?

    Only an official or employee of the foreign manufacturer with 
authority to appoint an agent may sign the Designation by Foreign 
Manufacturer.


Sec.  551.58  Who may sign the Acceptance by Agent?

    Only the agent, in the case of an individual, or an official or 
employee, in the case of a domestic firm or corporation serving as the 
agent with authority to sign for that firm of corporation, may sign the 
Acceptance of Agent.


Sec.  551.59  May the same individual sign both the Designation by 
Foreign Manufacturer and Acceptance by Agent?

    (a) Generally no; the Designation by Manufacturer must be signed by 
an official or employee of the foreign manufacturer and the Acceptance 
by Agent must be signed by the foreign manufacturer's agent, in the 
case of an individual, or by an official or employee, in the case of a 
domestic firm or corporation serving as its agent.
    (b) Occasionally an official of a foreign manufacturer also serves 
as an official of a domestic firm or corporation or is a permanent 
resident of the United States. In such cases, the official may serve as 
agent and sign the designation documents both on behalf of the foreign 
manufacturer and as agent. However, the foreign manufacturer must 
submit to NHTSA, along with the designation documents, a letter 
explaining that the individual signing the designation is both an 
official of the foreign manufacturer with authority to appoint an agent 
and a permanent resident of the United States or official of a domestic 
firm or corporation. If NHTSA does not receive an explanatory letter at 
the same time it receives the designation, the agency will deem the 
designation insufficient under this subpart and reject the submission.


Sec.  551.60  When must the Designation by Foreign Manufacturer be 
signed?

    (a) The foreign manufacturer must sign the Designation by Foreign 
Manufacturer on or before the date that the agent signs the Acceptance 
by Agent. It is not possible for an individual or entity to accept a 
designation as agent until on or after the date on which a foreign 
manufacturer makes the designation.
    (b) If the Designation by Foreign Manufacturer is dated after the 
Acceptance by Agent, NHTSA will deem the designation insufficient under 
this subpart and reject the submission.


Sec.  551.61  When must the Acceptance by Agent be signed?

    (a) The agent, in the case of an individual, or an employee or 
official, in the case of a domestic firm or corporation serving as 
agent, must sign the Acceptance by Agent on or after the date that the 
manufacturer signs the Designation by Foreign Manufacturer. It is not 
possible for an individual or entity to accept a designation as agent 
until on or after the date on which the foreign manufacturer makes the 
designation.
    (b) If the Acceptance by Agent is dated before the Designation by 
Foreign Manufacturer, NHTSA will deem the designation insufficient 
under this subpart and reject the submission.


Sec.  551.62  Where should a foreign manufacturer mail the designation?

    Foreign manufacturers must mail their designations to the Office of 
the

[[Page 45569]]

Executive Secretariat, National Highway Traffic Safety Administration, 
Room 5221, 400 Seventh Street, SW, Washington, DC 20590. No other NHTSA 
office is authorized to accept designation documents. To avoid delays, 
the agency suggests using express mail services.


Sec.  551.63  May a foreign manufacturer submit a designation by email 
or facsimile?

    No, the statute requires designation documents submitted by foreign 
manufacturers to contain original ink signatures. NHTSA will reject 
designation documents submitted via email or facsimile, as they do not 
satisfy this requirement.


Sec.  551.64  What if designation documents submitted by a foreign 
manufacturer do not comply with this subpart?

    Designations of agent are binding on the foreign manufacturer even 
when their form and contents do not comply with this subpart, unless 
rejected by the agency.


Sec.  551.65  What if a foreign manufacturer changes its name, address 
or product names or marks?

    (a) A foreign manufacturer must provide written notice to NHTSA of 
any changes in its name, address or marks, trade names, or other 
designations of origin appearing on its products.
    (b) Foreign manufacturers should mail notices to the Office of the 
Executive Secretariat, National Highway Traffic Safety Administration, 
Room 5221, 400 Seventh Street, SW., Washington, DC 20590. To avoid 
delays, the agency suggests using express mail services.

Method of Service of Process


Sec.  551.66  What is the legal effect of service of process on an 
agent?

    Service on an agent of administrative or judicial notices or 
process is deemed to be service on a manufacturer.


Sec.  551.67  Where and how may an agent be served?

    An agent may be served at the agent's office or usual place of 
residence, by registered or certified mail addressed to the agent with 
return receipt requested, or by any other manner authorized by law.


Sec.  551.68  What if an agent cannot be served?

    If an agent cannot be served because the agent cannot be located, 
has ceased to exist or does not receive correctly addressed mail, 
service may be made by posting the notice or process in the Office of 
the Secretary of Transportation.

BILLING CODE 4910-59-P

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[GRAPHIC] [TIFF OMITTED] TR08AU05.043


    Issued on: August 2, 2005.
Jeffrey W. Runge,
Administrator.
[FR Doc. 05-15561 Filed 8-5-05; 8:45 am]
BILLING CODE 4910-59-C