Certification; Importation of Vehicles and Equipment Subject to Federal Safety, Bumper and Theft Prevention Standards; Registered Importers of Vehicles Not Originally Manufactured To Conform to the Federal Motor Vehicle Safety Standards, 10846-10850 [06-2003]

Download as PDF 10846 Federal Register / Vol. 71, No. 42 / Friday, March 3, 2006 / Rules and Regulations nature, merely removing the post office box from the BLM Montana State Office address included in the Code of Federal Regulations. This final rule does not impede facilitating cooperative conservation; takes appropriate account of and considers the interests of persons with ownership or other legally recognized interests in land or other natural resources; has no effect on local participation in the Federal decisionmaking process; and provides that agency programs, projects, and activities are consistent with protecting public health and safety. Paperwork Reduction Act Author The principal author of this rule is Diane O. Williams, Regulatory Affairs Group (WO 630). Dated: February 23, 2006. Julie A. Jacobson, Acting Assistant Secretary, Land and Minerals Management. For the reasons discussed in the preamble, the Bureau of Land Management amends 43 CFR part 1820 as follows: I PART 1820—APPLICATION PROCEDURES 1. The authority citation for part 1820 continues to read as follows: I Authority: 5 U.S.C. 552, 43 U.S.C. 2, 1201, 1733, and 1740. Subpart 1821—General Information 2. Amend § 1821.10 by amending paragraph (a) by revising the address of the Bureau of Land Management, Montana State Office, to read as following: I Where are BLM offices located? (a) * * * wwhite on PROD1PC65 with RULES DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Parts 591, 592 and 594 [Docket No. NHTSA–2000–8159; Notice 4] State Offices and Areas of Jurisdiction * * * * * Montana State Office, 5001 Southgate Drive, Billings, Montana 59101–4669— Jkt 208001 Certification; Importation of Vehicles and Equipment Subject to Federal Safety, Bumper and Theft Prevention Standards; Registered Importers of Vehicles Not Originally Manufactured To Conform to the Federal Motor Vehicle Safety Standards National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Response to Petitions for Reconsideration. Administrative practice and procedure; Archives and records; Public lands. 16:36 Mar 02, 2006 BILLING CODE 4310–85–P AGENCY: List of Subjects in 43 CFR Part 1820 VerDate Aug<31>2005 [FR Doc. 06–1991 Filed 3–2–06; 8:45 am] RIN 2127–AJ63 The Paperwork Reduction Act does not apply because the rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq. § 1821.10 Montana, North Dakota and South Dakota. * * * * * SUMMARY: This document responds to two petitions for reconsideration of the October 4, 2005 final rule that amended regulations pertaining to the importation by registered importers of motor vehicles that were not originally manufactured to comply with all applicable Federal motor vehicle safety, bumper, and theft prevention standards. The petitioners contend that certification to the Theft Prevention Standard can not be accomplished after the original manufacture of a vehicle and object to a provision in the rule that requires registered importers to certify that either the vehicle is not required to comply with the parts marking requirements of the Theft Prevention Standard or that the vehicle complies with those requirements as manufactured or as modified prior to importation. The agency is denying the petitions. This document also denies a petition for an emergency stay by one of the petitioners. FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact Coleman Sachs, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, Room 6111, 400 Seventh Street, SW, Washington, DC 20590; Telephone: (202) 366–3151. For legal issues, you may contact Michael Goode, Office of Chief Counsel, Telephone: (202) 366–5263. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 I. Background On November 20, 2000, NHTSA published a Notice of Proposed Rulemaking (NPRM) proposing extensive amendments to the agency’s regulations that pertain to the importation by registered importers (RIs) of motor vehicles that were not originally manufactured to comply with all applicable Federal motor vehicle safety, bumper, and theft prevention standards. 65 FR 69810. On August 24, 2004, we published a final rule (69 FR 52070), and on October 4, 2005, we amended several provisions of that final rule in response to a petition for reconsideration (70 FR 57793). One of the amendments in the October 4, 2005 rule required RIs to certify for each nonconforming vehicle that they import that either the vehicle is not required to comply with the parts marking requirements of the Theft Prevention Standard (49 CFR part 541) or that the vehicle complies with those requirements as manufactured, or as modified prior to importation. 49 CFR 592.6(d)(1)(ii); see 70 FR at 57801. The National Insurance Crime Bureau (NICB)1 submitted a petition for reconsideration objecting to this provision, based on the contention that NHTSA has no authority to allow any entity other than the original manufacturer to certify compliance with the Theft Prevention Standard. The North American Export Committee 2 also filed a petition in support of NICB’s petition. In addition, on November 3, 2005, NICB filed a petition for an emergency stay of the effective date of the final rule. We are denying the petitions for reconsideration and the petition for a stay for the reasons discussed below. II. Discussion A. Theft Prevention Regulations The Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act) (Pub. L. 98–547, 98 Stat. 2754) added Title VI, ‘‘Theft Prevention,’’ to the Motor Vehicle Information and Cost Savings Act (Cost Savings Act), 15 U.S.C. 1901 et seq. (1982 & Supp.V 1987).3 The Theft Act required the 1 NICB states it is a non-profit organization that receives support from approximately 1,000 property/casualty insurance companies. The NICB works with insurers and law enforcement agencies to facilitate the identification, detection, and prosecution of insurance criminals. 2 The North American Export Committee states it is an entity composed of law enforcement organizations, insurance and vehicle-related business representatives in the U.S., Canada, and Mexico. 3 Pub. L. 92–513, 86 Stat. 947. The Cost Savings Act, as amended, was repealed in the course of the E:\FR\FM\03MRR1.SGM 03MRR1 Federal Register / Vol. 71, No. 42 / Friday, March 3, 2006 / Rules and Regulations Secretary of Transportation to issue rules to address the problem of vehicle theft. See 15 U.S.C. 2022 (Supp. V 1987). In a rulemaking conducted in 1985, NHTSA promulgated the Theft Prevention Standard pursuant to a delegation from the Secretary. 50 FR 43166 (Oct. 24, 1985). This rule set forth the performance criteria for affixing to or inscribing on covered major parts 4 of ‘‘high theft’’ line passenger motor vehicles identifying numbers, which generally are vehicle identification numbers (VINs). The Theft Prevention Standard was codified at 49 CFR part 541 (1986). In the rulemaking on the Theft Prevention Standard, NHTSA discussed the question of who may certify compliance with the Standard. Section 606(c)(1) of the Cost Savings Act, 15 U.S.C. 2026(c)(1) (Supp. V 1987), provided that: Every manufacturer of a motor vehicle subject to the standard * * * and every manufacturer of any major replacement part subject to such standard, shall furnish at the time of delivery of such vehicle or part a certification that such vehicle or replacement part conforms to the applicable motor vehicle Theft Prevention Standard. wwhite on PROD1PC65 with RULES The Theft Act did not define manufacturer, although the term was defined in the Cost Savings Act. 15 U.S.C. 1901(7) (1982 & Supp. V 1987). The NPRM on the Theft Prevention Standard proposed that only original vehicle manufacturers be allowed to certify compliance with the theft standard. See 50 FR at 19737–40. The agency noted that this would have the effect of prohibiting direct importers 5 from importing any high theft vehicle into the United States. As defined in the preamble, a direct importer is a person 1994 recodification of various laws pertaining to the Department of Transportation and was reenacted and recodified without substantive change as 49 U.S.C. 32101 et seq. (Pub. L. 103–272, 108 Stat. 745). See 108 Stat. 1034 (Cost Savings Act, as amended); 108 Stat. 1076 (Theft Prevention title); 108 Stat. 1379–1400 (repeals). 4 Currently, the list of major parts includes: engine, transmission, hood, fenders, side and rear doors (including sliding and cargo doors and deck lids, tailgates, or hatchbacks, whichever is present), bumpers, quarter panels, and pickup boxes and/or cargo boxes. See 49 CFR 541.5. 5 This term was used before the term registered importer was employed. The term registered importer has been used since the enactment of the Imported Vehicle Safety Compliance Act of 1988 (Pub. L. 100–562, 102 Stat. 2818), which amended the National Traffic and Motor Vehicle Safety Act and has been recodified at 49 U.S.C. 30141 et seq. Section 30141(c) provides for registration of importers. Both before and after the 1988 amendments, the National Traffic and Motor Vehicle Safety Act, as amended, required that a vehicle not originally manufactured to conform to safety standards be bonded for entry into the U.S. and be modified to meet all applicable safety standards. VerDate Aug<31>2005 16:36 Mar 02, 2006 Jkt 208001 that obtains foreign vehicles not originally manufactured for sale in the United States, brings those vehicles into the United States and modifies those vehicles so that they may be certified as being in compliance with U.S. vehicle safety, emissions, and bumper standards. 50 FR at 19738 (May 10, 1985); see also 50 FR at 43166 and 43181 (Oct. 24, 1985). NHTSA explained that: This proposal was based upon the Theft Act’s prohibition against importing noncomplying vehicles into the U.S., together with the Theft Act’s ambiguity as to whether persons besides the original manufacturer should be allowed to certify compliance. The proposal was also based upon the agency’s tentative conclusion that limiting certification authority would enhance the security of the marking technologies and the enforcement of this Theft Prevention Standard. 50 FR 43167 In their comments on the NPRM, generally, original manufacturers supported the proposed limitation on who could certify vehicles and importers opposed it. 50 FR at 43182. The importers argued that if Congress had intended to limit certification authority to original manufacturers, it would have done so explicitly. Id. A group of importers suggested a number of methods by which importers could be allowed to certify compliance without sacrificing enforcement. Id. The Department of Justice, which had enforcement authority under the Act (15 U.S.C. 2028 (Supp. V 1987)) supported the position of the direct importers. Id. In the final rule establishing the Theft Prevention Standard, NHTSA allowed direct imports of high theft vehicles. 50 FR at 43167, 43181–87. The rule’s definitions section stated: Statutory terms. All terms defined in sections 2 and 601 of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1901 and 2021) are used in accordance with their statutory meanings unless otherwise defined in paragraph (b) of this section. [49 CFR 541.4(a) (1986)]. One such term was ‘‘manufacturer’’, which was defined as: ‘‘any person engaged in the manufacturing or assembling of passenger motor vehicles or passenger motor vehicle equipment including any person importing motor vehicles or motor vehicle equipment for resale.’’ 15 U.S.C. 1901(7) (1982 & Supp. V 1987). In the Theft Prevention Standard, NHTSA specified requirements for passenger cars not originally manufactured to comply with U.S. vehicle safety and bumper standards. See 49 CFR 541.5(a) and (b)(3) (1986). These were explained in the preamble PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 10847 to the rule. 50 FR at 43183–85. NHTSA also established requirements for replacement parts subject to marking requirements which were not originally manufactured for sale in the United States. 49 CFR 541.6(a). The agency’s analysis of who may certify conformity to the Theft Prevention Standard began with the definition of the term ‘‘manufacturer’’ in section 2(7) of the Cost Savings Act, 15 U.S.C. 1901(7) (1982 & Supp. V 1987), which, as quoted above, included ‘‘any person importing motor vehicles or motor vehicle equipment for resale.’’ 50 FR at 43181. We concluded that, for various reasons, the Cost Savings Act’s broad definition of ‘‘manufacturer’’ applies to use of that term in the Theft Act, which added Title VI to the Cost Savings Act. 50 FR at 43182. Although the new Title VI on theft prevention did not state a definition of ‘‘manufacturer,’’ we noted that, in the Theft Act, Congress amended the Cost Savings Act to make its general definitions in section 2 apply to the Theft Act unless Title VI provided a different definition.6 (See the introductory clause to 49 U.S.C. 32101 for the current version of that language in recodified form.) For example, in Title VI, Congress provided a definition for ‘‘passenger motor vehicle’’ that differed from that already found in the Cost Savings Act, making the Title VI definition applicable for Theft Act purposes. (Compare the Cost Savings Act definition, now found at 49 U.S.C. 32101(10), with that in the Theft Act, now found in 49 U.S.C. 33101(10).) However, Title VI did not contain such a new and uniquely limited definition of ‘‘manufacturer,’’ meaning that the definition of that term for Theft Act purposes was provided by the Cost Savings Act’s definition of the term in section 2(7), which included any person importing motor vehicles or motor vehicle equipment for resale. This indicated that if Congress had wanted to exclude direct importers from the definition of manufacturer, it presumably would have done so explicitly. 50 FR at 43182. We also noted that the House Report expressly stated that the legislation was designed to ‘‘minimize regulation of the domestic and foreign motor vehicle manufacturing industry including the aftermarket motor vehicle industry’’ and it would be inconsistent with this goal to force a part of the industry out of that business. Id. citing H.R. Rep. No. 89– 6 15 U.S.C. 1901 (Supp. V 1987) provided: ‘‘Definitions for the purpose of this chapter [of the United States Code] (except subchapter V and except as provided in section 2021 of this title):’’. E:\FR\FM\03MRR1.SGM 03MRR1 10848 Federal Register / Vol. 71, No. 42 / Friday, March 3, 2006 / Rules and Regulations 1087 at 2 (1984). We recognized that the language of certain portions of Title VI seemed to indicate that Congress did not contemplate certification by direct importers. For example, we noted that Congress did not explicitly provide for importing vehicles not conformed to the theft standard under bond, as it had done for the safety, emissions, and bumper standards. 50 FR at 43182. As we explained, however, since there is no bonding provision under Title VI of the Cost Savings Act to assure conformity following importation, as exists under the Vehicle Safety Act, all vehicles subject to the theft standard must be certified as complying with the requirements of the Theft Prevention Standard before they are imported. Id. at 43181. The preamble to the theft prevention rule also considered whether the policy goals underlying the Theft Act would be better served by allowing or prohibiting certification of compliance by direct importers. After examining the matter, the agency adopted a final rule that allows all entities that are ‘‘manufacturers’’ within the meaning of the Cost Savings Act to certify compliance with the requirements of the Theft Prevention Standard. Id. at 43183. We stated that this is consistent with existing practice under the National Traffic and Motor Vehicle Safety Act of 1966 as amended (Vehicle Safety Act) 7, the Clean Air Act, and Title I of the Cost Savings Act. In 1992, Congress enacted The Anti Car Theft Act of 1992, which amended the Theft Act, Public Law 102–519, 106 Stat 3384. During this legislative activity, Congress considered the coverage of the Theft Act. It expanded the application of the Theft Prevention Standard to include multipurpose passenger vehicles and light duty trucks. 8 However, Congress did not question the definition of manufacturer, as interpreted in the agency’s 1985 rule. wwhite on PROD1PC65 with RULES B. Registered Importer Rule Amendments On November 20, 2000, NHTSA published an NPRM proposing extensive amendments to the agency’s regulations pertaining to the importation by RIs of vehicles that were not originally manufactured to comply with all applicable Federal motor vehicle safety, bumper and theft 7 The National Traffic and Motor Vehicle Safety Act, as amended, was repealed in the course of the 1994 recodification of various laws pertaining to the Department of Transportation and was reenacted and recodified without substantive change as 49 U.S.C. 30101 et seq. Pub. L. 103–272, 108 Stat. 745, 941–973; 1379–1400 (repeals). 8 106 Stat 3393. See 49 U.S.C. § 33101(10). VerDate Aug<31>2005 16:36 Mar 02, 2006 Jkt 208001 prevention standards. 65 FR 69810. As noted above, before this rulemaking, the agency had interpreted the Theft Act as allowing vehicles not originally manufactured to conform to the Theft Prevention Standard to be brought into conformance before entry into the United States, but not allowing postentry conformance. In the registered importer rulemaking, one proposed amendment was to permit RIs to bring a vehicle into compliance with the Theft Prevention Standard after the vehicle’s entry into the United States. 69 FR at 69817. In its comments, NICB objected to this proposed provision. The final RI rule did not adopt the proposal to allow post-entry conformance of imported vehicles to the Theft Prevention Standard. 69 FR 52070, 52078–79 (Aug. 24, 2004). Our decision not to adopt the proposal was based upon the prohibition against importing vehicles that do not conform to the Theft Prevention Standard in 49 U.S.C. 33114(a)(1). Unfortunately, the text of the rule inadvertently went beyond precluding post-entry conformance to the Theft Prevention Standard, and precluded conformance following the original production of the vehicle. 69 FR at 52096. A petition for reconsideration of the final RI rule by Mr. Philip Trupiano of Auto Enterprises, Inc., an RI, requested the agency to expressly permit the importation of a motor vehicle modified prior to importation to comply with the Theft Prevention Standard. 70 FR at 57797. In response, NHTSA amended the RI rule to require the RI to certify that the vehicle complies with parts marking requirements of the Theft Prevention Standard as manufactured or as modified prior to importation unless the vehicle is not required to comply. 49 CFR 592.6(d)(1)(ii), 70 FR 57801 (Oct. 4, 2005). We explained: The agency did not intend to preclude the importation of vehicles that are modified to comply with the Theft Prevention Standard prior to importation. However, the text of the provision adopted by the agency in 49 CFR 592.6(d)(1) inadvertently went beyond this intent by prohibiting the importation of a vehicle that was not originally manufactured to comply with the parts marking requirements of the Theft Prevention Standard. Because we did not intend to preclude the importation of vehicles that are modified to comply with the Theft Prevention Standard prior to importation, we are amending section 592.6(d)(1). As amended, the section excludes vehicles that do not comply with the Theft Prevention Standard at the time of importation, as opposed to those that were not originally manufactured to comply with that standard. [70 FR at 57798] PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 C. NICB’s Petition for Reconsideration In its petition for reconsideration, NICB argues that a person may not import a motor vehicle subject to the Theft Prevention Standard unless the manufacturer that produced the new vehicle produced it in conformance with the Theft Prevention Standard. Petition at 4 et seq. NICB asserts that the Theft Act explicitly rules out subsequent modification of the vehicle or its components to comply with the standard. Id. at 4. The petitioner points out that the Theft Prevention Standard is defined as a minimum performance standard for identifying major parts of new motor vehicles and major replacement parts by inscribing or affixing numbers or symbols on those parts. Id. at 4–5. In addition, the petitioner asserts that allowing RIs to certify compliance with the Theft Prevention Standard will result in a proliferation of stolen vehicles entering the U.S., causing financial loss and increased highway deaths and injuries. Id. at 6–8. NICB requests that 49 CFR 592.6(d)(1)(ii) be repealed. Id. at 9. D. Response to NICB Petition In our view, the question whether a vehicle may be conformed to the Theft Prevention Standard after its original manufacture but before its importation into the United States, and thus the validity of 49 CFR 592.6(d)(1)(ii), was resolved over twenty years ago when the Theft Prevention Standard was adopted. Most of the arguments raised by NICB were rejected in 1985. The NICB petition does not mention the resolution of the issue in 1985. A focal point, as it was in the 1985 rulemaking, is the meaning of the word ‘‘manufacturer’’ in the former Title VI of the Cost Savings Act, the Theft Act. As interpreted in 1985, the definition of manufacturer in the Cost Savings Act applies to the Theft Act. We adhere to that interpretation in light of the language and subject matter of the Act. Congress has long been aware that vehicles are imported into the United States. In 1966, in the Vehicle Safety Act, Congress established the definition of manufacturer to include persons involved in manufacturing and assembling vehicles and importers of vehicles for resale. In 1972, Congress enacted the Cost Savings Act, which contained the same definition of a manufacturer. In the next decade, Congress added the Theft Act as a new subtitle VI to the Cost Savings Act. Congress amended the definitions provision at the outset of the Cost E:\FR\FM\03MRR1.SGM 03MRR1 Federal Register / Vol. 71, No. 42 / Friday, March 3, 2006 / Rules and Regulations wwhite on PROD1PC65 with RULES Savings Act 9 so that it applied to all subtitles of the Act except the subtitle involving fuel economy (subtitle V) and as provided in 15 U.S.C. 2021, 15 U.S.C. 1901 (1982 and Supp. V 1987). See fn 6 infra. As noted above, Congress changed one of the definitions in the Cost Savings Act for the purposes of the Theft Act, that of the term ‘‘passenger motor vehicle’’, but not the definition of manufacturer, which reflects that Congress did not want to do so. It makes eminent sense for the same definition of manufacturer to apply to numerous aspects of motor vehicle regulation, including safety, bumpers, emissions, and theft prevention.10 Observing that the Theft Act provides for enforcement against manufacturers, NICB suggests that the regulation at issue leaves NHTSA without enforcement authority. Petition at 5. As noted above, under both the Vehicle Safety Act and the Theft Act, as interpreted by NHTSA, the term manufacturer includes importers. The regulation at issue requires the RI to certify that the vehicle complies with parts marking requirements of the Theft Prevention Standard as manufactured or as modified prior to importation unless the vehicle is not required to comply. 49 CFR.592.6(d)(1)(ii). In addition, the declaration furnished to Customs by the RI upon entry of the vehicle provides for the RI to certify that the vehicle conforms with applicable Federal Theft Prevention Standards. HS–7 form, Box 3. The government has more than ample authority to enforce these provisions, including inspection of imported vehicles, revocation of an RI’s license, and fines and penalties for noncompliance. See e.g., 49 U.S.C. 30141(c)(4), 30165, and 30166; 18 U.S.C. 1001; 49 CFR 592.6 and 592.7. NICB also refers to a provision in the Theft Act stating that a person may not ‘‘manufacture for sale, sell, offer for sale, introduce or deliver for introduction into interstate commerce, or import into the United States, a motor vehicle subject to a standard prescribed under section 33102 or 33013 of this title unless it conforms to the standard.’’ 49 U.S.C. 33114. Petitioner argues that NHTSA’s regulation ignores congressional commands. Petition at 4. This argument ignores the fact that the Theft Act prohibition refers to the Theft Prevention Standard, which provides that motor vehicles not originally 9 The Theft Act provided ‘‘Section 2 of the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1901) is amended by inserting ‘and except as provided in section 601 of this Act [the Theft Act]’ immediately after ‘title V’ ’’. 98 Stat. 2767. 10 We note that NICB refers to these programs together in one sentence. Petition at 3. VerDate Aug<31>2005 16:36 Mar 02, 2006 Jkt 208001 manufactured in conformance with the standard may be brought into compliance with the standard prior to importation. Thus, the RI regulation at issue is consistent with the Standard and does not undermine the prohibition in 49 U.S.C. 33114. The petitioner notes that the Theft Prevention Standard is defined as a minimum performance standard for identifying major parts of new motor vehicles and major replacement parts by inscribing or affixing numbers or symbols on those parts. 49 U.S.C. 33101. The reference to new motor vehicles reflects a general distinction between new and used vehicles in regulatory statutes regarding vehicles. For example, many of the central provisions of the Vehicle Safety Act, as amended, apply to new vehicles, rather than used vehicles. See e.g., 49 U.S.C. 30111, 30112(a), (b)(1); but see 49 U.S.C 30122 (make inoperative provision applies to all vehicles). Vehicles imported by registered importers do not neatly fall in either category. Although used, in numerous respects they are regulated like new vehicles and the RI must conform them to the requirements in effect when the vehicles originally were manufactured. The vehicles imported by RIs are subject to the prohibition on the sale of noncompliant vehicles in section 30112(a) when released, and the RIs are the vehicles’ manufacturers for various purposes, such as certifying compliance and conducting recalls. See, e.g., 49 U.S.C. 30118. There are no comparable requirements regarding used vehicles. NICB also notes that the Theft Act refers to parts that manufacturers install. Petition at 4. NHTSA addressed this in 1985. See also 50 FR 43181. NICB also argues that U.S. authorities cannot monitor parts marking operations that occur in foreign countries, as allowed under the new rule. Id. at 5. The petitioner asserts that this fact explains why Congress allowed vehicles that were not parts marked to be imported if they were labeled for export only. This argument ignores the 1985 Theft Prevention Standard and the fact that U.S. authorities have the authority to inspect the vehicles when they are awaiting release by NHTSA. See 49 U.S.C. 30166; 49 CFR 591.6(e). In any event, the exception from compliance with U.S. standards for vehicles that are for export only does not support the argument that conformance of vehicles to the Theft Prevention Standard after their original manufacture is precluded. There was a similar exemption from safety standards in the Vehicle Safety Act, 15 U.S.C. 1397(b)(5); see § 1397(b)(3) (1982), see also 49 U.S.C. 30112(b)(3) (2000). The PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 10849 Vehicle Safety Act did not prelude postoriginal manufacture conformity to safety standards and similarly the provision in the Theft Act did not do so. Further, NICB argues that permitting parts marking before importation is inconsistent with NHTSA’s RI regulatory system. Id. at 6. NICB bases its argument in part on 49 CFR 591.2 under which, it claims, nonconforming vehicles must be brought into conformity with the bumper and safety standards ‘‘before they are imported.’’ This argument lacks merit; the phrase ‘‘before importation’’ is not in the regulation. Similarly, NICB erroneously asserts that RIs by definition include only importers of vehicles not originally manufactured to conform to all applicable safety standards and not importers of vehicles that do not comply with the theft standard. This argument ignores the fact that over twenty years ago, NHTSA promulgated the Theft Prevention Standard, which allowed the importation of vehicles not originally manufactured to conform to the Theft Prevention Standard if conformed before importation. The preamble expressly recognized that vehicles are imported by direct (registered) importers. 50 FR at 63166, 43181–85. As explained in the preamble to the RI rule NPRM, prior to the RI rule amendments NHTSA implemented the prohibition on importation of vehicles that do not comply with the Theft Prevention Standards through the agency’s certification regulation. See 65 FR at 69817. In the RI rule, the agency furthered the implementation of the Theft Act requirement through the RI rule. In view of the fact that RIs import vehicles, this is a sound approach to implementation. The petitioner also advances policy arguments asserting that allowing RIs to certify compliance to the Theft Prevention Standard before importation will allow car thieves outside of the U.S. to place VINs from damaged vehicles, such as vehicles that have been totaled or submerged in water, on stolen vehicles from outside the U.S. Petition at 6–8. NICB argues that this will impose financial losses on American consumers and increase highway deaths and injuries. Id. NICB’s policy arguments ignore the fact that for twenty years vehicles not originally manufactured to comply with the Theft Prevention Standard have been allowed entry into the United States after being conformed to the Theft Prevention Standard. Also, NICB merely offers sweeping generalities to support its views. In fact, the vehicles imported through the registered importer program are a very small percentage of the total E:\FR\FM\03MRR1.SGM 03MRR1 10850 Federal Register / Vol. 71, No. 42 / Friday, March 3, 2006 / Rules and Regulations number of registered vehicles. In the United States, there are over 230,000,000 registered vehicles. In 2005, about 12,700 vehicles were imported into the U.S. by RIs. Approximately 99 percent of the imported vehicles not originally manufactured to meet U.S. standards were imported from Canada. A portion of these imported vehicles have not been high theft line vehicles subject to the Theft Prevention Standard. Of those that were, based upon our experience in program administration, a considerable fraction of the motor vehicles manufactured for the Canadian market are parts-marked to the U.S. Theft Prevention Standard. In addition, some portion of these Canadian vehicles were equipped with anti-theft devices identical or similar to ones installed in vehicles granted an exemption by NHTSA pursuant to 49 CFR part 543. Furthermore, effective September 2007, Canada Motor Vehicle Safety Standard 114 will require that all vehicles with a gross vehicle weight rating (GVWR) of less than 10,000 lbs, except emergency vehicles, be equipped with anti-theft immobilization devices. An estimated 85 percent of all model year 2006 Canadian vehicles are equipped with such devices. Thus, there is a relatively small subset of vehicles imported yearly into the U.S. that were not originally manufactured to comply with the U.S. Theft Prevention Standard and do not have an anti-theft device. We are not aware of problems associated with RIs’ importation of vehicles that are subject to and do not comply with the Theft Prevention Standard. Since the practice of allowing pre-importation conformity has worked for 20 years, we decline to change it. E. NICB’s Petition for an Emergency Stay wwhite on PROD1PC65 with RULES On November 3, 2005, NICB filed a petition for an emergency stay of the effective date (November 3, 2005) of 49 CFR 592.6(d)(1)(ii) amended by the October 4, 2005 final rule. The petitioner asserts that the American public and importers will suffer irreparable harm. The petition requests that NHTSA stay the effective date of the provision until the agency has had time to consider its petition for reconsideration. This is moot. Accordingly, the petition is denied. Issued: February 28, 2006. Jacqueline Glassman, Deputy Administrator. [FR Doc. 06–2003 Filed 3–2–06; 8:45 am] BILLING CODE 4910–59–P VerDate Aug<31>2005 16:36 Mar 02, 2006 Jkt 208001 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 060111007–6053–02; I.D. 010906A] RIN 0648–AT56 Pacific Halibut Fisheries; Catch Sharing Plan National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; annual management measures for Pacific halibut fisheries and approval of Catch Sharing Plan; changes to the Catch Sharing Plan and to sport fishing management in Area 2A. AGENCY: SUMMARY: The Assistant Administrator for Fisheries, NOAA (AA), on behalf of the International Pacific Halibut Commission (IPHC), publishes annual management measures promulgated as regulations by the IPHC and approved by the Secretary of State governing the Pacific halibut fishery. The AA also announces modifications to the Catch Sharing Plan (CSP) for Area 2A and implementing regulations for 2006, and announces approval of the Area 2A CSP. These actions are intended to enhance the conservation of Pacific halibut and further the goals and objectives of the Pacific Fishery Management Council (PFMC) and the North Pacific Fishery Management Council (NPFMC). EFFECTIVE DATE: March 5, 2006. ADDRESSES: Additional requests for information regarding this action may be obtained by contacting either the International Pacific Halibut Commission, P.O. Box 95009, Seattle, WA 98145–2009, or Sustainable Fisheries Division, Alaska Region, NMFS P.O. Box 21668, Juneau, AK 99802–1668, or Sustainable Fisheries Division, NMFS Northwest Region, 7600 Sand Point Way, NE., Seattle, WA 98105. This final rule also is accessible via the Internet at the Government Printing Office’s Web site at https:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Bubba Cook, 907–586–7425, e-mail at bubba.cook@noaa.gov, or Jamie Goen, 206–526–4646, e-mail at jamie.goen@noaa.gov. SUPPLEMENTARY INFORMATION: Background The IPHC has promulgated regulations governing the Pacific halibut PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 fishery in 2006 under the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea (Convention), signed at Ottawa, Ontario, on March 2, 1953, as amended by a Protocol Amending the Convention (signed at Washington, DC, on March 29, 1979). The IPHC regulations have been approved by the Secretary of State of the United States under section 4 of the Northern Pacific Halibut Act (Halibut Act, 16 U.S.C. 773– 773k). Pursuant to regulations at 50 CFR 300.62, the approved IPHC regulations setting forth the 2006 IPHC annual management measures are published in the Federal Register to provide notice of their effectiveness, and to inform persons subject to the regulations of the restrictions and requirements. These management measures are effective until superseded by the 2007 management measures, which NMFS will publish in the Federal Register. The IPHC held its annual meeting in Bellevue, Washington, January 17–20, 2006, and adopted regulations for 2006. The substantive changes to the previous IPHC regulations (70 FR 9242, February 25, 2005) include: 1. New commercial fishery opening date of March 5; 2. Opening dates for the Area 2A commercial non-tribal directed halibut fishery; 3. Adoption of the revised Area 2A CSP. 4. A new possession limit on land for Washington, Oregon, and California. The IPHC recommended catch limits for 2006 to the governments of Canada and the United States totaling 69,860,000 lbs. (31,688.5 mt) The IPHC staff reported on the assessment of the Pacific halibut stock in 2005. The assessment indicated healthy halibut stocks in Areas 3A through 2A, but indicated declines in Areas 3B and throughout Area 4 requiring lower catch rates. Recruitment of 1994 and 1995 year classes appeared relatively strong in all areas except Area 4B, which showed lower recruitment levels for the same year classes. IPHC staff also reported that recoveries of PIT-tagged halibut in the Bering Sea and Gulf of Alaska remain low, providing insufficient information to reliably estimate exploitable biomass in those areas. Based on recommendations by the IPHC staff, the IPHC adopted a harvest rate of 22.5 percent as the baseline harvest rate for Areas 3A, 2C, 2B, and 2A. Reduced recruitment and a new assessment of productivity in Areas 4B and 4CDE indicated an appropriate harvest rate of 15 percent. Thus, as a E:\FR\FM\03MRR1.SGM 03MRR1

Agencies

[Federal Register Volume 71, Number 42 (Friday, March 3, 2006)]
[Rules and Regulations]
[Pages 10846-10850]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2003]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Parts 591, 592 and 594

[Docket No. NHTSA-2000-8159; Notice 4]
RIN 2127-AJ63


Certification; Importation of Vehicles and Equipment Subject to 
Federal Safety, Bumper and Theft Prevention Standards; Registered 
Importers of Vehicles Not Originally Manufactured To Conform to the 
Federal Motor Vehicle Safety Standards

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

ACTION: Response to Petitions for Reconsideration.

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SUMMARY: This document responds to two petitions for reconsideration of 
the October 4, 2005 final rule that amended regulations pertaining to 
the importation by registered importers of motor vehicles that were not 
originally manufactured to comply with all applicable Federal motor 
vehicle safety, bumper, and theft prevention standards. The petitioners 
contend that certification to the Theft Prevention Standard can not be 
accomplished after the original manufacture of a vehicle and object to 
a provision in the rule that requires registered importers to certify 
that either the vehicle is not required to comply with the parts 
marking requirements of the Theft Prevention Standard or that the 
vehicle complies with those requirements as manufactured or as modified 
prior to importation. The agency is denying the petitions. This 
document also denies a petition for an emergency stay by one of the 
petitioners.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
Coleman Sachs, Office of Vehicle Safety Compliance, National Highway 
Traffic Safety Administration, Room 6111, 400 Seventh Street, SW, 
Washington, DC 20590; Telephone: (202) 366-3151. For legal issues, you 
may contact Michael Goode, Office of Chief Counsel, Telephone: (202) 
366-5263.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 20, 2000, NHTSA published a Notice of Proposed 
Rulemaking (NPRM) proposing extensive amendments to the agency's 
regulations that pertain to the importation by registered importers 
(RIs) of motor vehicles that were not originally manufactured to comply 
with all applicable Federal motor vehicle safety, bumper, and theft 
prevention standards. 65 FR 69810. On August 24, 2004, we published a 
final rule (69 FR 52070), and on October 4, 2005, we amended several 
provisions of that final rule in response to a petition for 
reconsideration (70 FR 57793). One of the amendments in the October 4, 
2005 rule required RIs to certify for each nonconforming vehicle that 
they import that either the vehicle is not required to comply with the 
parts marking requirements of the Theft Prevention Standard (49 CFR 
part 541) or that the vehicle complies with those requirements as 
manufactured, or as modified prior to importation. 49 CFR 
592.6(d)(1)(ii); see 70 FR at 57801.
    The National Insurance Crime Bureau (NICB)\1\ submitted a petition 
for reconsideration objecting to this provision, based on the 
contention that NHTSA has no authority to allow any entity other than 
the original manufacturer to certify compliance with the Theft 
Prevention Standard. The North American Export Committee \2\ also filed 
a petition in support of NICB's petition. In addition, on November 3, 
2005, NICB filed a petition for an emergency stay of the effective date 
of the final rule. We are denying the petitions for reconsideration and 
the petition for a stay for the reasons discussed below.
---------------------------------------------------------------------------

    \1\ NICB states it is a non-profit organization that receives 
support from approximately 1,000 property/casualty insurance 
companies. The NICB works with insurers and law enforcement agencies 
to facilitate the identification, detection, and prosecution of 
insurance criminals.
    \2\ The North American Export Committee states it is an entity 
composed of law enforcement organizations, insurance and vehicle-
related business representatives in the U.S., Canada, and Mexico.
---------------------------------------------------------------------------

II. Discussion

A. Theft Prevention Regulations

    The Motor Vehicle Theft Law Enforcement Act of 1984 (Theft Act) 
(Pub. L. 98-547, 98 Stat. 2754) added Title VI, ``Theft Prevention,'' 
to the Motor Vehicle Information and Cost Savings Act (Cost Savings 
Act), 15 U.S.C. 1901 et seq. (1982 & Supp.V 1987).\3\ The Theft Act 
required the

[[Page 10847]]

Secretary of Transportation to issue rules to address the problem of 
vehicle theft. See 15 U.S.C. 2022 (Supp. V 1987). In a rulemaking 
conducted in 1985, NHTSA promulgated the Theft Prevention Standard 
pursuant to a delegation from the Secretary. 50 FR 43166 (Oct. 24, 
1985). This rule set forth the performance criteria for affixing to or 
inscribing on covered major parts \4\ of ``high theft'' line passenger 
motor vehicles identifying numbers, which generally are vehicle 
identification numbers (VINs). The Theft Prevention Standard was 
codified at 49 CFR part 541 (1986).
---------------------------------------------------------------------------

    \3\ Pub. L. 92-513, 86 Stat. 947. The Cost Savings Act, as 
amended, was repealed in the course of the 1994 recodification of 
various laws pertaining to the Department of Transportation and was 
reenacted and recodified without substantive change as 49 U.S.C. 
32101 et seq. (Pub. L. 103-272, 108 Stat. 745). See 108 Stat. 1034 
(Cost Savings Act, as amended); 108 Stat. 1076 (Theft Prevention 
title); 108 Stat. 1379-1400 (repeals).
    \4\ Currently, the list of major parts includes: engine, 
transmission, hood, fenders, side and rear doors (including sliding 
and cargo doors and deck lids, tailgates, or hatchbacks, whichever 
is present), bumpers, quarter panels, and pickup boxes and/or cargo 
boxes. See 49 CFR 541.5.
---------------------------------------------------------------------------

    In the rulemaking on the Theft Prevention Standard, NHTSA discussed 
the question of who may certify compliance with the Standard. Section 
606(c)(1) of the Cost Savings Act, 15 U.S.C. 2026(c)(1) (Supp. V 1987), 
provided that:

    Every manufacturer of a motor vehicle subject to the standard * 
* * and every manufacturer of any major replacement part subject to 
such standard, shall furnish at the time of delivery of such vehicle 
or part a certification that such vehicle or replacement part 
conforms to the applicable motor vehicle Theft Prevention Standard.

The Theft Act did not define manufacturer, although the term was 
defined in the Cost Savings Act. 15 U.S.C. 1901(7) (1982 & Supp. V 
1987).

    The NPRM on the Theft Prevention Standard proposed that only 
original vehicle manufacturers be allowed to certify compliance with 
the theft standard. See 50 FR at 19737-40. The agency noted that this 
would have the effect of prohibiting direct importers \5\ from 
importing any high theft vehicle into the United States. As defined in 
the preamble, a direct importer is a person that obtains foreign 
vehicles not originally manufactured for sale in the United States, 
brings those vehicles into the United States and modifies those 
vehicles so that they may be certified as being in compliance with U.S. 
vehicle safety, emissions, and bumper standards. 50 FR at 19738 (May 
10, 1985); see also 50 FR at 43166 and 43181 (Oct. 24, 1985). NHTSA 
explained that:
---------------------------------------------------------------------------

    \5\ This term was used before the term registered importer was 
employed. The term registered importer has been used since the 
enactment of the Imported Vehicle Safety Compliance Act of 1988 
(Pub. L. 100-562, 102 Stat. 2818), which amended the National 
Traffic and Motor Vehicle Safety Act and has been recodified at 49 
U.S.C. 30141 et seq. Section 30141(c) provides for registration of 
importers. Both before and after the 1988 amendments, the National 
Traffic and Motor Vehicle Safety Act, as amended, required that a 
vehicle not originally manufactured to conform to safety standards 
be bonded for entry into the U.S. and be modified to meet all 
applicable safety standards.

    This proposal was based upon the Theft Act's prohibition against 
importing non-complying vehicles into the U.S., together with the 
Theft Act's ambiguity as to whether persons besides the original 
manufacturer should be allowed to certify compliance. The proposal 
was also based upon the agency's tentative conclusion that limiting 
certification authority would enhance the security of the marking 
---------------------------------------------------------------------------
technologies and the enforcement of this Theft Prevention Standard.

50 FR 43167

    In their comments on the NPRM, generally, original manufacturers 
supported the proposed limitation on who could certify vehicles and 
importers opposed it. 50 FR at 43182. The importers argued that if 
Congress had intended to limit certification authority to original 
manufacturers, it would have done so explicitly. Id. A group of 
importers suggested a number of methods by which importers could be 
allowed to certify compliance without sacrificing enforcement. Id. The 
Department of Justice, which had enforcement authority under the Act 
(15 U.S.C. 2028 (Supp. V 1987)) supported the position of the direct 
importers. Id.
    In the final rule establishing the Theft Prevention Standard, NHTSA 
allowed direct imports of high theft vehicles. 50 FR at 43167, 43181-
87. The rule's definitions section stated:

    Statutory terms. All terms defined in sections 2 and 601 of the 
Motor Vehicle Information and Cost Savings Act (15 U.S.C. 1901 and 
2021) are used in accordance with their statutory meanings unless 
otherwise defined in paragraph (b) of this section. [49 CFR 541.4(a) 
(1986)].

One such term was ``manufacturer'', which was defined as: ``any person 
engaged in the manufacturing or assembling of passenger motor vehicles 
or passenger motor vehicle equipment including any person importing 
motor vehicles or motor vehicle equipment for resale.'' 15 U.S.C. 
1901(7) (1982 & Supp. V 1987).

    In the Theft Prevention Standard, NHTSA specified requirements for 
passenger cars not originally manufactured to comply with U.S. vehicle 
safety and bumper standards. See 49 CFR 541.5(a) and (b)(3) (1986). 
These were explained in the preamble to the rule. 50 FR at 43183-85. 
NHTSA also established requirements for replacement parts subject to 
marking requirements which were not originally manufactured for sale in 
the United States. 49 CFR 541.6(a).
    The agency's analysis of who may certify conformity to the Theft 
Prevention Standard began with the definition of the term 
``manufacturer'' in section 2(7) of the Cost Savings Act, 15 U.S.C. 
1901(7) (1982 & Supp. V 1987), which, as quoted above, included ``any 
person importing motor vehicles or motor vehicle equipment for 
resale.'' 50 FR at 43181.
    We concluded that, for various reasons, the Cost Savings Act's 
broad definition of ``manufacturer'' applies to use of that term in the 
Theft Act, which added Title VI to the Cost Savings Act. 50 FR at 
43182. Although the new Title VI on theft prevention did not state a 
definition of ``manufacturer,'' we noted that, in the Theft Act, 
Congress amended the Cost Savings Act to make its general definitions 
in section 2 apply to the Theft Act unless Title VI provided a 
different definition.\6\ (See the introductory clause to 49 U.S.C. 
32101 for the current version of that language in recodified form.) For 
example, in Title VI, Congress provided a definition for ``passenger 
motor vehicle'' that differed from that already found in the Cost 
Savings Act, making the Title VI definition applicable for Theft Act 
purposes. (Compare the Cost Savings Act definition, now found at 49 
U.S.C. 32101(10), with that in the Theft Act, now found in 49 U.S.C. 
33101(10).) However, Title VI did not contain such a new and uniquely 
limited definition of ``manufacturer,'' meaning that the definition of 
that term for Theft Act purposes was provided by the Cost Savings Act's 
definition of the term in section 2(7), which included any person 
importing motor vehicles or motor vehicle equipment for resale. This 
indicated that if Congress had wanted to exclude direct importers from 
the definition of manufacturer, it presumably would have done so 
explicitly. 50 FR at 43182.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 1901 (Supp. V 1987) provided: ``Definitions for 
the purpose of this chapter [of the United States Code] (except 
subchapter V and except as provided in section 2021 of this 
title):''.
---------------------------------------------------------------------------

    We also noted that the House Report expressly stated that the 
legislation was designed to ``minimize regulation of the domestic and 
foreign motor vehicle manufacturing industry including the aftermarket 
motor vehicle industry'' and it would be inconsistent with this goal to 
force a part of the industry out of that business. Id. citing H.R. Rep. 
No. 89-

[[Page 10848]]

1087 at 2 (1984). We recognized that the language of certain portions 
of Title VI seemed to indicate that Congress did not contemplate 
certification by direct importers. For example, we noted that Congress 
did not explicitly provide for importing vehicles not conformed to the 
theft standard under bond, as it had done for the safety, emissions, 
and bumper standards. 50 FR at 43182. As we explained, however, since 
there is no bonding provision under Title VI of the Cost Savings Act to 
assure conformity following importation, as exists under the Vehicle 
Safety Act, all vehicles subject to the theft standard must be 
certified as complying with the requirements of the Theft Prevention 
Standard before they are imported. Id. at 43181.
    The preamble to the theft prevention rule also considered whether 
the policy goals underlying the Theft Act would be better served by 
allowing or prohibiting certification of compliance by direct 
importers. After examining the matter, the agency adopted a final rule 
that allows all entities that are ``manufacturers'' within the meaning 
of the Cost Savings Act to certify compliance with the requirements of 
the Theft Prevention Standard. Id. at 43183. We stated that this is 
consistent with existing practice under the National Traffic and Motor 
Vehicle Safety Act of 1966 as amended (Vehicle Safety Act) \7\, the 
Clean Air Act, and Title I of the Cost Savings Act.
---------------------------------------------------------------------------

    \7\ The National Traffic and Motor Vehicle Safety Act, as 
amended, was repealed in the course of the 1994 recodification of 
various laws pertaining to the Department of Transportation and was 
reenacted and recodified without substantive change as 49 U.S.C. 
30101 et seq. Pub. L. 103-272, 108 Stat. 745, 941-973; 1379-1400 
(repeals).
---------------------------------------------------------------------------

    In 1992, Congress enacted The Anti Car Theft Act of 1992, which 
amended the Theft Act, Public Law 102-519, 106 Stat 3384. During this 
legislative activity, Congress considered the coverage of the Theft 
Act. It expanded the application of the Theft Prevention Standard to 
include multipurpose passenger vehicles and light duty trucks. \8\ 
However, Congress did not question the definition of manufacturer, as 
interpreted in the agency's 1985 rule.
---------------------------------------------------------------------------

    \8\ 106 Stat 3393. See 49 U.S.C. Sec.  33101(10).
---------------------------------------------------------------------------

B. Registered Importer Rule Amendments

    On November 20, 2000, NHTSA published an NPRM proposing extensive 
amendments to the agency's regulations pertaining to the importation by 
RIs of vehicles that were not originally manufactured to comply with 
all applicable Federal motor vehicle safety, bumper and theft 
prevention standards. 65 FR 69810. As noted above, before this 
rulemaking, the agency had interpreted the Theft Act as allowing 
vehicles not originally manufactured to conform to the Theft Prevention 
Standard to be brought into conformance before entry into the United 
States, but not allowing post-entry conformance.
    In the registered importer rulemaking, one proposed amendment was 
to permit RIs to bring a vehicle into compliance with the Theft 
Prevention Standard after the vehicle's entry into the United States. 
69 FR at 69817. In its comments, NICB objected to this proposed 
provision.
    The final RI rule did not adopt the proposal to allow post-entry 
conformance of imported vehicles to the Theft Prevention Standard. 69 
FR 52070, 52078-79 (Aug. 24, 2004). Our decision not to adopt the 
proposal was based upon the prohibition against importing vehicles that 
do not conform to the Theft Prevention Standard in 49 U.S.C. 
33114(a)(1). Unfortunately, the text of the rule inadvertently went 
beyond precluding post-entry conformance to the Theft Prevention 
Standard, and precluded conformance following the original production 
of the vehicle. 69 FR at 52096.
    A petition for reconsideration of the final RI rule by Mr. Philip 
Trupiano of Auto Enterprises, Inc., an RI, requested the agency to 
expressly permit the importation of a motor vehicle modified prior to 
importation to comply with the Theft Prevention Standard. 70 FR at 
57797. In response, NHTSA amended the RI rule to require the RI to 
certify that the vehicle complies with parts marking requirements of 
the Theft Prevention Standard as manufactured or as modified prior to 
importation unless the vehicle is not required to comply. 49 CFR 
592.6(d)(1)(ii), 70 FR 57801 (Oct. 4, 2005). We explained:

    The agency did not intend to preclude the importation of 
vehicles that are modified to comply with the Theft Prevention 
Standard prior to importation. However, the text of the provision 
adopted by the agency in 49 CFR 592.6(d)(1) inadvertently went 
beyond this intent by prohibiting the importation of a vehicle that 
was not originally manufactured to comply with the parts marking 
requirements of the Theft Prevention Standard. Because we did not 
intend to preclude the importation of vehicles that are modified to 
comply with the Theft Prevention Standard prior to importation, we 
are amending section 592.6(d)(1). As amended, the section excludes 
vehicles that do not comply with the Theft Prevention Standard at 
the time of importation, as opposed to those that were not 
originally manufactured to comply with that standard. [70 FR at 
57798]

C. NICB's Petition for Reconsideration

    In its petition for reconsideration, NICB argues that a person may 
not import a motor vehicle subject to the Theft Prevention Standard 
unless the manufacturer that produced the new vehicle produced it in 
conformance with the Theft Prevention Standard. Petition at 4 et seq. 
NICB asserts that the Theft Act explicitly rules out subsequent 
modification of the vehicle or its components to comply with the 
standard. Id. at 4.
    The petitioner points out that the Theft Prevention Standard is 
defined as a minimum performance standard for identifying major parts 
of new motor vehicles and major replacement parts by inscribing or 
affixing numbers or symbols on those parts. Id. at 4-5. In addition, 
the petitioner asserts that allowing RIs to certify compliance with the 
Theft Prevention Standard will result in a proliferation of stolen 
vehicles entering the U.S., causing financial loss and increased 
highway deaths and injuries. Id. at 6-8. NICB requests that 49 CFR 
592.6(d)(1)(ii) be repealed. Id. at 9.

D. Response to NICB Petition

    In our view, the question whether a vehicle may be conformed to the 
Theft Prevention Standard after its original manufacture but before its 
importation into the United States, and thus the validity of 49 CFR 
592.6(d)(1)(ii), was resolved over twenty years ago when the Theft 
Prevention Standard was adopted. Most of the arguments raised by NICB 
were rejected in 1985. The NICB petition does not mention the 
resolution of the issue in 1985.
    A focal point, as it was in the 1985 rulemaking, is the meaning of 
the word ``manufacturer'' in the former Title VI of the Cost Savings 
Act, the Theft Act. As interpreted in 1985, the definition of 
manufacturer in the Cost Savings Act applies to the Theft Act. We 
adhere to that interpretation in light of the language and subject 
matter of the Act. Congress has long been aware that vehicles are 
imported into the United States. In 1966, in the Vehicle Safety Act, 
Congress established the definition of manufacturer to include persons 
involved in manufacturing and assembling vehicles and importers of 
vehicles for resale. In 1972, Congress enacted the Cost Savings Act, 
which contained the same definition of a manufacturer. In the next 
decade, Congress added the Theft Act as a new subtitle VI to the Cost 
Savings Act. Congress amended the definitions provision at the outset 
of the Cost

[[Page 10849]]

Savings Act \9\ so that it applied to all subtitles of the Act except 
the subtitle involving fuel economy (subtitle V) and as provided in 15 
U.S.C. 2021, 15 U.S.C. 1901 (1982 and Supp. V 1987). See fn 6 infra. As 
noted above, Congress changed one of the definitions in the Cost 
Savings Act for the purposes of the Theft Act, that of the term 
``passenger motor vehicle'', but not the definition of manufacturer, 
which reflects that Congress did not want to do so. It makes eminent 
sense for the same definition of manufacturer to apply to numerous 
aspects of motor vehicle regulation, including safety, bumpers, 
emissions, and theft prevention.\10\
---------------------------------------------------------------------------

    \9\ The Theft Act provided ``Section 2 of the Motor Vehicle 
Information and Cost Savings Act (15 U.S.C. 1901) is amended by 
inserting `and except as provided in section 601 of this Act [the 
Theft Act]' immediately after `title V' ''. 98 Stat. 2767.
    \10\ We note that NICB refers to these programs together in one 
sentence. Petition at 3.
---------------------------------------------------------------------------

    Observing that the Theft Act provides for enforcement against 
manufacturers, NICB suggests that the regulation at issue leaves NHTSA 
without enforcement authority. Petition at 5. As noted above, under 
both the Vehicle Safety Act and the Theft Act, as interpreted by NHTSA, 
the term manufacturer includes importers. The regulation at issue 
requires the RI to certify that the vehicle complies with parts marking 
requirements of the Theft Prevention Standard as manufactured or as 
modified prior to importation unless the vehicle is not required to 
comply. 49 CFR.592.6(d)(1)(ii). In addition, the declaration furnished 
to Customs by the RI upon entry of the vehicle provides for the RI to 
certify that the vehicle conforms with applicable Federal Theft 
Prevention Standards. HS-7 form, Box 3. The government has more than 
ample authority to enforce these provisions, including inspection of 
imported vehicles, revocation of an RI's license, and fines and 
penalties for noncompliance. See e.g., 49 U.S.C. 30141(c)(4), 30165, 
and 30166; 18 U.S.C. 1001; 49 CFR 592.6 and 592.7.
    NICB also refers to a provision in the Theft Act stating that a 
person may not ``manufacture for sale, sell, offer for sale, introduce 
or deliver for introduction into interstate commerce, or import into 
the United States, a motor vehicle subject to a standard prescribed 
under section 33102 or 33013 of this title unless it conforms to the 
standard.'' 49 U.S.C. 33114. Petitioner argues that NHTSA's regulation 
ignores congressional commands. Petition at 4. This argument ignores 
the fact that the Theft Act prohibition refers to the Theft Prevention 
Standard, which provides that motor vehicles not originally 
manufactured in conformance with the standard may be brought into 
compliance with the standard prior to importation. Thus, the RI 
regulation at issue is consistent with the Standard and does not 
undermine the prohibition in 49 U.S.C. 33114.
    The petitioner notes that the Theft Prevention Standard is defined 
as a minimum performance standard for identifying major parts of new 
motor vehicles and major replacement parts by inscribing or affixing 
numbers or symbols on those parts. 49 U.S.C. 33101. The reference to 
new motor vehicles reflects a general distinction between new and used 
vehicles in regulatory statutes regarding vehicles. For example, many 
of the central provisions of the Vehicle Safety Act, as amended, apply 
to new vehicles, rather than used vehicles. See e.g., 49 U.S.C. 30111, 
30112(a), (b)(1); but see 49 U.S.C 30122 (make inoperative provision 
applies to all vehicles). Vehicles imported by registered importers do 
not neatly fall in either category. Although used, in numerous respects 
they are regulated like new vehicles and the RI must conform them to 
the requirements in effect when the vehicles originally were 
manufactured. The vehicles imported by RIs are subject to the 
prohibition on the sale of noncompliant vehicles in section 30112(a) 
when released, and the RIs are the vehicles' manufacturers for various 
purposes, such as certifying compliance and conducting recalls. See, 
e.g., 49 U.S.C. 30118. There are no comparable requirements regarding 
used vehicles. NICB also notes that the Theft Act refers to parts that 
manufacturers install. Petition at 4. NHTSA addressed this in 1985. See 
also 50 FR 43181.
    NICB also argues that U.S. authorities cannot monitor parts marking 
operations that occur in foreign countries, as allowed under the new 
rule. Id. at 5. The petitioner asserts that this fact explains why 
Congress allowed vehicles that were not parts marked to be imported if 
they were labeled for export only. This argument ignores the 1985 Theft 
Prevention Standard and the fact that U.S. authorities have the 
authority to inspect the vehicles when they are awaiting release by 
NHTSA. See 49 U.S.C. 30166; 49 CFR 591.6(e). In any event, the 
exception from compliance with U.S. standards for vehicles that are for 
export only does not support the argument that conformance of vehicles 
to the Theft Prevention Standard after their original manufacture is 
precluded. There was a similar exemption from safety standards in the 
Vehicle Safety Act, 15 U.S.C. 1397(b)(5); see Sec.  1397(b)(3) (1982), 
see also 49 U.S.C. 30112(b)(3) (2000). The Vehicle Safety Act did not 
prelude post-original manufacture conformity to safety standards and 
similarly the provision in the Theft Act did not do so.
    Further, NICB argues that permitting parts marking before 
importation is inconsistent with NHTSA's RI regulatory system. Id. at 
6. NICB bases its argument in part on 49 CFR 591.2 under which, it 
claims, nonconforming vehicles must be brought into conformity with the 
bumper and safety standards ``before they are imported.'' This argument 
lacks merit; the phrase ``before importation'' is not in the 
regulation. Similarly, NICB erroneously asserts that RIs by definition 
include only importers of vehicles not originally manufactured to 
conform to all applicable safety standards and not importers of 
vehicles that do not comply with the theft standard. This argument 
ignores the fact that over twenty years ago, NHTSA promulgated the 
Theft Prevention Standard, which allowed the importation of vehicles 
not originally manufactured to conform to the Theft Prevention Standard 
if conformed before importation. The preamble expressly recognized that 
vehicles are imported by direct (registered) importers. 50 FR at 63166, 
43181-85. As explained in the preamble to the RI rule NPRM, prior to 
the RI rule amendments NHTSA implemented the prohibition on importation 
of vehicles that do not comply with the Theft Prevention Standards 
through the agency's certification regulation. See 65 FR at 69817. In 
the RI rule, the agency furthered the implementation of the Theft Act 
requirement through the RI rule. In view of the fact that RIs import 
vehicles, this is a sound approach to implementation.
    The petitioner also advances policy arguments asserting that 
allowing RIs to certify compliance to the Theft Prevention Standard 
before importation will allow car thieves outside of the U.S. to place 
VINs from damaged vehicles, such as vehicles that have been totaled or 
submerged in water, on stolen vehicles from outside the U.S. Petition 
at 6-8. NICB argues that this will impose financial losses on American 
consumers and increase highway deaths and injuries. Id.
    NICB's policy arguments ignore the fact that for twenty years 
vehicles not originally manufactured to comply with the Theft 
Prevention Standard have been allowed entry into the United States 
after being conformed to the Theft Prevention Standard. Also, NICB 
merely offers sweeping generalities to support its views. In fact, the 
vehicles imported through the registered importer program are a very 
small percentage of the total

[[Page 10850]]

number of registered vehicles. In the United States, there are over 
230,000,000 registered vehicles. In 2005, about 12,700 vehicles were 
imported into the U.S. by RIs. Approximately 99 percent of the imported 
vehicles not originally manufactured to meet U.S. standards were 
imported from Canada. A portion of these imported vehicles have not 
been high theft line vehicles subject to the Theft Prevention Standard. 
Of those that were, based upon our experience in program 
administration, a considerable fraction of the motor vehicles 
manufactured for the Canadian market are parts-marked to the U.S. Theft 
Prevention Standard. In addition, some portion of these Canadian 
vehicles were equipped with anti-theft devices identical or similar to 
ones installed in vehicles granted an exemption by NHTSA pursuant to 49 
CFR part 543. Furthermore, effective September 2007, Canada Motor 
Vehicle Safety Standard 114 will require that all vehicles with a gross 
vehicle weight rating (GVWR) of less than 10,000 lbs, except emergency 
vehicles, be equipped with anti-theft immobilization devices. An 
estimated 85 percent of all model year 2006 Canadian vehicles are 
equipped with such devices. Thus, there is a relatively small subset of 
vehicles imported yearly into the U.S. that were not originally 
manufactured to comply with the U.S. Theft Prevention Standard and do 
not have an anti-theft device. We are not aware of problems associated 
with RIs' importation of vehicles that are subject to and do not comply 
with the Theft Prevention Standard. Since the practice of allowing pre-
importation conformity has worked for 20 years, we decline to change 
it.

E. NICB's Petition for an Emergency Stay

    On November 3, 2005, NICB filed a petition for an emergency stay of 
the effective date (November 3, 2005) of 49 CFR 592.6(d)(1)(ii) amended 
by the October 4, 2005 final rule. The petitioner asserts that the 
American public and importers will suffer irreparable harm. The 
petition requests that NHTSA stay the effective date of the provision 
until the agency has had time to consider its petition for 
reconsideration. This is moot. Accordingly, the petition is denied.

    Issued: February 28, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-2003 Filed 3-2-06; 8:45 am]
BILLING CODE 4910-59-P