Schedule of Fees Authorized by 49 U.S.C. 30141 Offer of Cash Deposits or Obligations of the United States in Lieu of Sureties on DOT Conformance Bonds, 39890-39896 [E8-14858]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 134 (Friday, July 11, 2008)]
[Rules and Regulations]
[Pages 39890-39896]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14858]



[[Page 39890]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 594

[Docket No. NHTSA-2007-0037; Notice 2]
RIN 2127-AK10


Schedule of Fees Authorized by 49 U.S.C. 30141 Offer of Cash 
Deposits or Obligations of the United States in Lieu of Sureties on DOT 
Conformance Bonds

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

ACTION: Final rule.

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SUMMARY: This document amends NHTSA's regulations that prescribe fees 
authorized by 49 U.S.C. Sec. 30141 for various functions performed by 
the agency with respect to the importation of motor vehicles that are 
not originally manufactured to conform to all applicable Federal motor 
vehicle safety and bumper standards. An importer must file with U.S. 
Customs and Border Protection (CBP) a Department of Transportation 
(DOT) conformance bond at the time that a nonconforming motor vehicle 
is offered for importation into the United States, or in lieu of such a 
bond, the importer may post cash deposits or obligations of the United 
States to ensure that the vehicle will be brought into conformance with 
all applicable standards within 120 days from the date of importation, 
or will be exported from, or abandoned to, the United States. To avoid 
the costs of a DOT conformance bond, some importers have attempted to 
post cash deposits, which would relieve the importers of the bonding 
costs, but cause the agency to expend considerable resources. The 
amendments adopted today establish a fee of $459.00 that will permit 
the government to recover all the direct and indirect costs incurred by 
the agency in processing cash deposits or obligations of the United 
States that are furnished in lieu of a DOT conformance bond.

DATES: Effective date: The effective date for this final rule is 
October 1, 2008.
    Petitions for reconsideration: Petitions for reconsideration of 
this final rule must be received by NHTSA not later than August 25, 
2008.

ADDRESSES: Petitions for reconsideration of this final rule must refer 
to the docket and notice numbers set forth above and be submitted to 
the Administrator, National Highway Traffic Safety Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590.
    In addition, a copy of the petition for reconsideration must be 
submitted to the docket number cited in the heading above by any of the 
following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting 
information.
     Mail Addressed to: Docket Management Facility, U.S. 
Department of Transportation, 1200 New Jersey Avenue, SE., West 
Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. Eastern 
Time, Monday through Friday, except for Federal holidays.
     Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: For non-legal issues: Coleman Sachs, 
Office of Vehicle Safety Compliance, National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (202-
366-3151). For legal issues: Michael Goode, Office of Chief Counsel, 
National Highway Traffic Safety Administration, 1200 New Jersey Avenue, 
SE., Washington, DC 20590 (202-366-5238).

SUPPLEMENTARY INFORMATION:

I. Introduction

    As described in the notice of proposed rulemaking (NPRM), subject 
to certain exceptions, 49 U.S.C. 30112(a) prohibits any person from 
importing into the United States a motor vehicle manufactured on or 
after the date that an applicable Federal motor vehicle safety standard 
(FMVSS) takes effect unless the vehicle complies with the standard and 
is so certified by its manufacturer. 72 FR 65532 (November 21, 2007). 
One of the exceptions to this prohibition is found in 49 U.S.C. 30141. 
That section permits an importer that is registered with NHTSA (a 
``registered importer'') to import a motor vehicle that was not 
originally manufactured to conform to all applicable FMVSS, provided 
NHTSA has decided that the vehicle is eligible for importation. Under 
the criteria that are specified in section 30141 for these decisions, a 
motor vehicle is not eligible for importation unless, among other 
things, it is capable of being altered to comply with all applicable 
FMVSS. See 49 U.S.C. 30141(a)(1)(A)(iv) and (B).

II. Requirements for Bonding

    Once NHTSA decides that a motor vehicle is eligible for 
importation, a vehicle of the same make, model, and model year can be 
imported by a registered importer (RI) or by a person who has executed 
a contract with an RI to bring the vehicle into compliance with all 
applicable FMVSS. For vehicles that are imported in this fashion, a DOT 
conformance bond (Form HS-474), in an amount equivalent to 150 percent 
of the declared value of the vehicle, must be furnished to CBP at the 
time of importation to ensure that the necessary modifications are 
completed within 120 days from the date of entry or, if conformance is 
not achieved, for the vehicle to be delivered to the Secretary of 
Homeland Security for export at no cost to the United States, or for 
the vehicle to be abandoned to the United States. See 49 CFR 591.6(c). 
The DOT conformance bond must be underwritten by a surety that 
possesses a certificate of authority to underwrite Federal bonds. See 
49 CFR 591.8(c), referencing a list of certificated sureties at 54 FR 
27800, June 30, 1989.
    In lieu of sureties on a DOT conformance bond, an importer may 
offer United States money, United States bonds (except for savings 
bonds), United States certificates of indebtedness, Treasury notes, or 
Treasury bills (hereinafter referred to as ``cash deposits'') in an 
amount equal to the amount of the bond. See 49 CFR 591.10(a).
    As stated in the NPRM, in recent years some RIs have encountered 
difficulty in obtaining DOT conformance bonds underwritten by 
certificated sureties. To achieve the entry of the nonconforming 
vehicles they have sought to import, these RIs have had to resort to 
furnishing NHTSA with cash deposits in lieu of sureties on a DOT 
conformance bond. Other RIs have attempted to post cash deposits to 
avoid the cost of procuring a DOT conformance bond. The receipt, 
processing, handling, and disbursement of the cash deposits that have 
been tendered by RIs have caused the agency to consume a considerable 
amount of staff time and material resources.

III. Fees Authorized by 49 U.S.C. 30141

    As detailed in the NPRM, NHTSA is authorized under 49 U.S.C. 
30141(a)(3) to establish an annual fee requiring RIs to pay for the 
costs of carrying out the RI program. The agency is also authorized 
under this section to establish fees to pay for the costs of processing 
the conformance bonds that RIs provide, and fees to pay for the costs 
of making agency decisions relating to the importation of noncomplying 
motor vehicles and equipment.
    Because NHTSA's acceptance of the cash deposits is a necessary 
predicate to the release of the vehicle into the

[[Page 39891]]

commerce of the United States, NHTSA has concluded that the expense 
incurred by the agency to receive, process, handle, and disburse cash 
deposits may be treated as part of the bond processing cost, for which 
NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A).
    Even if such authority did not exist in Chapter 301 of Title 49, 
U.S. Code, the Independent Offices Appropriation Act of 1952, 31 U.S.C. 
Sec. 9701, provides ample authority for NHTSA to impose fees that are 
sufficient to recover the agency's full costs to receive, process, 
handle, and disburse cash deposits. By performing these tasks, NHTSA is 
performing a specific service for an identifiable beneficiary that can 
form the basis for the imposition of a fee under 31 U.S.C. Sec. 9701. 
Courts have long recognized that Federal agencies may impose fees under 
section 9701 for providing comparable services to regulated entities. 
See, e.g., Seafarers International Union of North America v. U.S. Coast 
Guard, 81 F.3d 179, 183 (D.C. Cir. 1996) (finding the Coast Guard 
authorized to charge reasonable fees for processing applications for 
merchant mariner licenses, certificates, and work documents); Engine 
Manufacturers Association v. E.P.A., 20 F.3d 1177, 1180 (D.C. Cir. 
1994) (finding the E.P.A. authorized to impose a fee to recover its 
costs for testing vehicles and engines for compliance with the emission 
standards of the Clean Air Act); and National Cable Television 
Association, Inc. v. F.C.C., 554 F.2d 1094, 1101 (D.C. Cir. 1976) 
(finding the F.C.C. authorized to impose fees for issuing certificates 
of compliance to cable television operators). In view of the language 
and judicial construction of 31 U.S.C. 9701, NHTSA is relying on this 
provision as an independent source of authority for the fee to cover 
the agency's cost of processing cash deposits.

IV. Fee for Processing Cash Deposits

    Although the fees described above have permitted NHTSA to recover 
the costs it incurs in administering certain aspects of the RI program, 
other services that NHTSA provides to importers of nonconforming 
vehicles have gone unreimbursed. One such service is the receipt, 
processing, handling, and disbursement of cash deposits submitted by 
importers and RIs in lieu of sureties on DOT conformance bonds. The 
amendments adopted in this final rule will permit the agency to collect 
a fee to recover its costs in providing these services.

V. Fee Computation

    As noted in the NPRM, NHTSA computes the fees that it collects 
under the authority of 49 U.S.C. 30141 on the basis of all direct and 
indirect costs incurred by the agency in performing the function for 
which the fee is charged. In the Federal Register notice proposing the 
original schedule of fees that was adopted in Part 594, the agency 
observed that this approach was consistent with the manner in which 
other agencies have computed user fees under the Independent Offices 
Appropriation Act, 31 U.S.C. 9701, and the Consolidated Omnibus Budget 
Reconciliation Act, Public Law 99-272. See 54 FR 17792, 17793 (April 
25, 1989). NHTSA specified in the 1989 NPRM proposing rules for the RI 
program that ``the fees imposed by Part 594 would include the agency's 
best direct and indirect cost estimates of the man-hours involved in 
each activity, on both the staff and supervisory levels, the costs of 
computer and word processor usage, costs attributable to travel, 
salary, and benefits, and maintenance of work space,'' as appropriate 
for each fee. See 54 FR 17795 (April 25, 1989).
    Consistent with this approach, the agency considered its direct and 
indirect costs in calculating the fee for the review, processing, 
handling, and disbursement of cash deposits submitted by importers and 
RIs in lieu of sureties on a DOT conformance bond. In the NPRM, the 
agency proposed a fee of $598.00 to recover the expenses the government 
incurs in the performance of these functions. In computing this 
proposed fee, the agency estimated that it would take 60 minutes of a 
government employee's time to deliver the funds provided by importers 
and RIs to a bank for deposit in the agency's account and an additional 
60 minutes to withdraw those funds. This estimate was based on the need 
for the funds to be deposited in a non-interest bearing commercial 
account for which the agency would not be charged any transactional 
fees. The bank in which the agency had established such an account was 
in downtown Washington, DC, some distance from the DOT Headquarters 
Building, requiring transit time for the deposit and withdrawal to be 
made.
    Following publication of the NPRM, the agency was able to open a 
non-interest bearing commercial account for which it will not be 
charged any transactional fees at a bank in close proximity to the new 
DOT Headquarters building in the Southeast Federal Center. Given the 
location of this bank, the agency estimates that it will take 15 
minutes of an employee's time to bring the importer's cash deposit to 
the bank, wait there for the transaction to be completed, and return to 
the office and an additional 15 minutes to go to the bank, wait for a 
cashier's check payable to the importer to be drawn, and return to the 
office once the agency receives satisfactory evidence that all 
necessary conformance modifications have been performed on the vehicle 
for which the cash deposit was made. As a result, the total amount of 
staff time needed to accomplish these tasks has been reduced from 2 
hours to 30 minutes. Calculating the charge for this time at the rate 
of $92.64 per hour, this will result in a reduction of $138.96 from the 
$598.00 fee originally proposed.
    Accounting for this difference, NHTSA is adopting a fee of $459.00 
to recover the costs it incurs for each vehicle imported during FY 
2009, for which the importer or RI submits a cash deposit in lieu of a 
DOT conformance bond. This fee will have to be tendered with each cash 
deposit submitted to the agency in lieu of sureties on a DOT 
conformance bond. The factors that the agency has taken into account in 
establishing the fee, including time expended by agency personnel, 
hourly rates for their services, and other direct and indirect costs, 
are detailed in a chart included in Appendix A of this notice.

VI. Response to Comment

    The NPRM solicited comments from interested members of the public. 
One comment was submitted in response to the NPRM. The substance of 
this comment, which was submitted by an RI, and the agency response to 
each point that it raised, are set forth below.

A. General Observations

    The comment, in general, disputed whether the agency had accurately 
set forth in the analysis included in the NPRM the direct and indirect 
costs of processing cash deposits. The commenter expressed the opinion 
that some of the costs identified by the agency should be reduced or 
eliminated, especially in circumstances where importers already 
understand the obligations associated with importing a nonconforming 
motor vehicle, have previously submitted cash deposits in lieu of 
sureties on a DOT conformance bond, and have entered into formal 
agreements with the agency relating to those cash deposits in the past.
    In the NPRM, the agency stated that it considered its direct and 
indirect costs relating to administering cash deposits for the purposes 
of calculating the proposed fee. As further stated in the NPRM, the 
agency's direct costs included the estimated cost of contractor and 
professional staff time and direct costs including computer

[[Page 39892]]

equipment and maintenance costs, telephone toll charges, and postage. 
To present the best available information, the agency included in the 
NPRM a detailed itemization of each step in the process for 
administering cash deposits, including the time spent by agency staff 
on each step and the cost associated with each step.
    We are aware that more or less staff time may actually be spent on 
processing a cash deposit in an individual circumstance, and that this 
could be influenced by the experience level of the importer. To be 
reasonable, the agency based its cost estimates on the average time its 
staff spent time accomplishing each step of the process and the direct 
and indirect costs associated with each step.
    More specific observations raised in the comment, and the agency's 
responses are set forth below.

B. Importer Obligations

    The commenter stated that the agency should not charge for time 
that it expends in discussing with importers their obligations 
pertaining to cash deposits. The commenter also asked whether the 
agency would charge an importer for this time even if the importer 
should ultimately decide not to provide a cash deposit.
    We believe that importers must clearly understand their obligations 
relating to the submission of cash deposits before those importers 
enter into formal agreements with the agency. While agency personnel 
may expend more time explaining those obligations to a first time 
importer than to one who has previously submitted cash deposits, we 
believe that the average time shown in the analysis is reasonable. 
Naturally, an importer could only be expected to pay the fee for the 
processing of cash deposits if the importer actually submits a cash 
deposit to the agency. In circumstances where the importer discusses 
with the agency the prospect of making a cash deposit, but ultimately 
elects not to submit one, there would be no basis for assessing a fee 
and the agency would not seek to collect one. Nevertheless, in 
circumstances where the importer decides to go ahead and make a cash 
deposit, the time expended by the agency in discussing the 
preliminaries with the importer is part of the transaction and is 
fairly compensable.

C. Toll Charges

    The commenter observed that the agency could email the formal 
agreement to the importer at no charge rather than having to incur toll 
charges by transmitting the agreement by facsimile. By doing so, the 
commenter contended that the agency could reduce the fee associated 
with this step in the process.
    In its analysis of the costs incurred by the agency for 
administering cash deposits, the agency identified three long-distance 
toll calls totaling $5.75 to reimburse the government for its expenses 
in transmitting the agreement by facsimile to the importer for 
signature and later notifying CBP and the importer by letter that the 
importation of the vehicle may proceed. While the commenter is correct 
that the agreement could be emailed to the importer, the agency incurs 
computer time costs, and any difference in the costs associated with 
either method of transmitting the agreement is de minimis.

D. Formal Agreement

    The commenter noted that NHTSA has already developed the language 
incorporated into the agreement and that the importer is only required 
to fill in blank spaces with identifying information on itself and the 
nonconforming vehicle that it seeks to enter. The commenter further 
noted that after the importer completes and signs the agreement, it 
must be returned to the agency for signature by an official authorized 
to sign on the agency's behalf. In light of these formalities, the 
commenter observes that the agency should not charge the importer for 
the actions it takes at this step in the process.
    In its analysis, the agency estimated that it would take 10 minutes 
to prepare the formal agreement for transmittal to the importer. This 
total includes staff time expended to locate and retrieve the agreement 
from a computer hard drive, to review the document and make any changes 
to the agreement that may be required to accommodate the importer's 
unique circumstances, to print out a hard copy of the document, and to 
otherwise prepare the document for transmittal to the importer. Because 
agency resources are expended at this step in the process for the 
benefit of an individual importer, there is clear justification for the 
government to be reimbursed for those expenses. As noted in this 
analysis, the agency will not be charging importers for the time it 
originally expended to develop the agreement in the format now being 
used.

E. Receipt and Transmittal of Cash Deposits

    The commenter asked why the agency is charging for receiving in the 
mail and transmitting to responsible agency staff, the cash deposit and 
formal agreement sent to the agency by an importer.
    As discussed above, the agency provided an itemization of its 
direct and indirect costs associated with each step of the process of 
administering cash deposits. The agency attributed 10 minutes of 
contractor time to processing mail containing the importer's cash 
deposit and delivering the cash deposit to agency staff. The agency 
attributed an additional 5 minutes of contractor time to receiving mail 
containing the formal agreement executed by the importer and delivering 
the signed agreement to agency staff. The difference in processing time 
is attributable to additional controls associated with the handling of 
cash and cash equivalents. Because the contactor time expended on these 
two occasions is a direct cost incurred by the agency in administering 
cash deposits, the agency is fully justified in obtaining reimbursement 
for this expense.

F. Approval of Formal Agreement

    The commenter questioned whether it in fact takes six government 
employees 70 minutes to prepare and approve the agreement.
    As reflected in the first table in Appendix A to this notice, one 
government employee spends an average of 20 minutes preparing a memo to 
transmit the formal agreement up the chain of command and three 
managers spend an average of no more than 10 minutes each to review and 
forward the agreement for the signature of the NHTSA manager who is 
authorized by regulation to enter such agreements on the agency's 
behalf. Four agency employees are involved in this process and the 
total average time for all of these steps is 50 minutes. Because this 
is another direct cost incurred by the agency in processing cash 
deposits, the agency is fully justified in obtaining reimbursement for 
this cost.

G. Importer Approval Letter

    The commenter questioned why the agency would use its resources to 
create and mail a letter notifying the importer that the agency 
representative has signed the formal agreement and that the agency has 
authorized the entry of the importer's vehicle. The importer stated 
that after both parties sign the formal agreement, the agency notifies 
CBP by letter that the importer's vehicle may be imported. The 
commenter stated that in lieu of creating a separate letter to the 
importer, the agency could send to the importer a courtesy copy of the 
letter it sends to CBP and eliminate the agency's cost to create the 
importer's letter.

[[Page 39893]]

    The agency believes that when an importer enters into an agreement 
with, and sends a cash deposit to the government, a proper practice is 
for the agency to provide a written acknowledgment that the agreement 
is in place and that the agency has deposited the importer's cash 
deposit into the non-interest bearing commercial bank account the 
agency established for holding these funds. The letter provides the 
importer with a written record that its funds are in the government's 
hands. The agency would be remiss in its responsibility as the 
custodian of those funds if it were not to provide the importer with 
this acknowledgment. This is another expense that the government is 
fully justified to collect.

H. Disbursement of Cash Deposits

    The commenter questioned why the agency attributed 60 minutes of 
staff time to sending back to the importer a check in the amount of the 
cash deposit.
    As part of the analysis for the fee proposed in the NPRM, the 
agency estimated that it would take one hour of the NHTSA finance 
manager's time to travel to the bank, be issued a check drawn on the 
agency's account, and return to DOT headquarters. The agency stated in 
the NPRM that these tasks must be accomplished in person at the 
agency's designated bank by the NHTSA official authorized to withdraw 
funds from the agency's bank account. As explained in section V of this 
notice under the heading ``Fee Computation,'' the agency has now opened 
a non-interest bearing commercial account for which it will not be 
charged transactional fees at a bank that is close to the DOT 
Headquarters Building at the Southeast Federal Center in Washington, 
DC. This will reduce from one hour to 15 minutes the time needed to 
deliver the importer's cash deposit to the bank, and reduce from one 
hour to 15 minutes the time needed to withdraw that deposit once the 
agency receives satisfactory evidence that all needed conformance 
modifications have been completed on the vehicle for which the cash 
deposit was made. On account of this reduction in staff time needed to 
process a cash deposit, the agency will be charging $459.00 for that 
processing, as opposed to the $598.00 it originally proposed.
    No other issues were raised in the one comment submitted in 
response to the NPRM. As is evident from the above discussion, the 
agency has found no basis in the issues that were raised in the comment 
to make any other changes in the rule as originally proposed.

VII. Statutory Basis for the Final Rule and Effective Date

    NHTSA is required under 49 U.S.C. 30141(e) to ``review and make 
appropriate adjustments at least every 2 years in the amounts of the 
fees'' relating to the registration of importers, the processing of 
bonds, and making decisions concerning the importation of nonconforming 
vehicles. The statute further requires the agency to ``establish the 
fees for each fiscal year before the beginning of that year.'' Fiscal 
Year 2009 begins on October 1, 2008. In the NPRM, we proposed to make 
this rule effective October 1, 2008, and did not receive any comments 
on this issue. Accordingly, the effective date of this final rule is 
October 1, 2008.

VIII. Petitions for Reconsideration

    Petitions for reconsideration of this final rule must be received 
by NHTSA not later than the date specified in the ``Dates: Petitions 
for reconsideration:'' heading at the beginning of this notice. 
Petitions received after that date will be considered petitions filed 
by interested persons to initiate rulemaking pursuant to 49 U.S.C. 
Chapter 301. The petition must contain a brief statement of the 
complaint and an explanation as to why compliance with the final rule 
is not practicable, is unreasonable, or is not in the public interest. 
The statement and explanation together may not exceed 15 pages in 
length, but necessary attachments may be appended to the submission 
without regard to the 15-page limit. If it is requested that additional 
facts be considered, the petitioner must state the reason why they were 
not presented to the Administrator within the prescribed time. The 
Administrator does not consider repetitive petitions and unless the 
Administrator otherwise provides, the filing of a petition does not 
stay the effective date of the final rule.

IX. Appendix A

    The following tables provide an itemization of the time expended, 
hourly rates, and direct and indirect costs associated with NHTSA's 
receipt, handling, processing, and disbursement of cash deposits 
submitted to the agency in lieu of sureties on DOT conformance bonds:

                            Receipt, Processing, and Handling of Cash Deposits [Cash]
----------------------------------------------------------------------------------------------------------------
                                                                  Time      FY 07     FY 07     FY 08     FY 08
                  Step of process                     Staff *     mins.     rate      cost      rate      cost
----------------------------------------------------------------------------------------------------------------
Cash received and delivered........................          C        10    $50.50     $8.42    $51.77     $8.63
Agreement obligations discussed with importer......         E         10     89.88     14.98     92.64     15.44
Prepare formal agreement...........................         E         10     89.88     14.98     92.64     15.44
Agreement faxed for importer's signature...........  .........  ........  ........     (\1\)  ........     (\1\)
Signed agreement received and delivered............          C         5     50.50      4.21     51.77      4.31
Prepare agreement approval memo....................         E         20     89.88     29.96     92.64     30.88
Agreement review and signature.....................         E         10     98.52     16.42    101.61     16.94
                                                            E         10     98.52     16.42    101.61     16.94
                                                            E         10     98.52     16.42    101.61     16.94
Prepare CBP letter approving vehicle entry.........         E         10     89.88     14.98     92.64     15.44
Fax CBP letter.....................................  .........  ........  ........     (\1\)  ........     (\1\)
Prepare importer letter approving vehicle entry....         E         10     89.88     14.98     92.64     15.44
Transmit letter to importer by fax.................  .........  ........  ........     (\1\)  ........     (\1\)
Create database record.............................          C         5     50.50      4.21     51.77      4.31
Prepare and deliver memo/cash to finance...........         E         10     89.88     14.98     92.64     15.44
Deposit cash in bank...............................         E         15     89.88     22.47     92.64     23.16
                                                                         ---------------------------------------
    Subtotal.......................................  .........  ........  ........    193.43  ........    199.31
----------------------------------------------------------------------------------------------------------------
* Staff Notes: (C) is contractor and (E) is employee.
\1\ Toll charge.


[[Page 39894]]


                                Handling and Disbursement of Cash Deposits [Cash]
----------------------------------------------------------------------------------------------------------------
                                                                  Time      FY 07     FY 07     FY 08     FY 08
                  Step of process                     Staff *     mins.     rate      cost      rate      cost
----------------------------------------------------------------------------------------------------------------
Importer notifies NHTSA that vehicle conformance            E         10    $89.88    $14.98    $92.64    $15.44
 obligations are met...............................
Prepare memo requesting check to importer..........         E         10     89.88     14.98     92.64     15.44
Withdraw funds from bank by check..................         E         15     89.88     22.47     92.64     23.16
Deliver check......................................         E          5     89.88      7.49     92.64      7.72
Notify NHTSA Finance Director......................         E          5     89.88      7.49     92.64      7.72
Prepare letter with check enclosure................         E         10     89.88     14.98     92.64     15.44
Mail letter and check to importer..................  .........  ........  ........     (\1\)  ........     (\1\)
Review monthly bank statements.....................         E          5     89.88      7.49     92.64      7.72
                                                                         ---------------------------------------
    Subtotal.......................................  .........  ........  ........     89.88  ........     92.64
----------------------------------------------------------------------------------------------------------------
* Staff Notes: (C) is contractor and (E) is employee.
\1\ Postage.


                                               Other Direct Costs
----------------------------------------------------------------------------------------------------------------
                                                          Time
                     Direct costs                        mins.    FY 07 rate  FY 07 cost  FY 08 rate  FY 08 cost
----------------------------------------------------------------------------------------------------------------
Computer and Computer Maintenance....................        85     $1.86/hr     $158.10    $1.86/hr     $158.10
Postage..............................................  .........        3.00        3.00        3.00        3.00
Toll Calls (3).......................................  .........        1.92        5.75        1.92        5.75
                                                                             -----------------------------------
    Subtotal.........................................  .........  ..........      166.85  ..........      166.85
----------------------------------------------------------------------------------------------------------------


------------------------------------------------------------------------
                   Subtotals                     FY 07 cost   FY 08 cost
------------------------------------------------------------------------
Subtotal......................................      $193.43      $199.31
Subtotal......................................        89.88        92.64
Subtotal......................................       166.85       166.85
                                               -------------------------
    Total.....................................       450.16       458.80
------------------------------------------------------------------------

X. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order. The Order defines a ``significant regulatory action'' 
as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    We have considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed by 
the Office of Management and Budget under Executive Order 12866. This 
rulemaking action is also not considered to be significant under the 
Department's Regulatory Policies and Procedures (44 FR 11034; February 
26, 1979).
    Based on the level of the fees and the volume of affected vehicles, 
NHTSA has concluded that the costs of the final rule will be so minimal 
as not to warrant preparation of a full regulatory evaluation. Because 
NHTSA's acceptance of the cash deposits is a necessary predicate to the 
release of the vehicle into the commerce of the United States, NHTSA 
has concluded that the expense incurred by the agency (the subject of 
this rulemaking) to receive, process, handle, and disburse cash 
deposits may be treated as part of the bond processing cost, for which 
NHTSA is authorized to set a fee under 49 U.S.C. 3014(a)(3)(A).
    This action does not involve any substantial public interest or 
controversy. It has no substantial effect upon State and local 
governments and imposes no substantial impact upon a major 
transportation safety program. A regulatory evaluation analyzing the 
economic impact of the final rule establishing the registered importer 
program, adopted on September 29, 1989, was prepared, and is available 
for review in the docket.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBFEFA) of 1996), whenever an agency is required to publish a notice 
of proposed rulemaking or a final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
The Small Business Administration's regulations at 13 CFR Part 121 
define a small business, in part, as a business entity ``which operates 
primarily within the United States.'' See 13 CFR Sec.  121.105(a). No 
regulatory flexibility analysis is required if the head of an agency 
certifies that the rule would not have a significant economic impact on 
a substantial number of small entities. The SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule would not 
have a significant economic impact on a substantial number of small 
entities.
    The agency has considered the effects of this rulemaking under the 
Regulatory Flexibility Act, and certifies that the amendment it adopts 
will not have a significant economic impact upon a substantial number 
of small entities.
    The following is NHTSA's statement providing the factual basis for 
the certification (5 U.S.C. 605(b)). The adopted amendment will 
primarily

[[Page 39895]]

affect entities that currently modify nonconforming vehicles and which 
are small businesses within the meaning of the Regulatory Flexibility 
Act. Of the 67 such entities that are currently licensed with NHTSA, 
only a few have furnished the agency with cash deposits in lieu of 
sureties on DOT conformance bonds. Despite the fact that they qualify 
as small businesses, the agency has no reason to believe that these 
companies will be unable to pay the adopted fee. Moreover, consistent 
with prevailing industry practices, the fee should be passed through to 
the ultimate purchasers of any vehicle for which a cash deposit in lieu 
of sureties is given to the agency. The cost to owners or purchasers of 
these vehicles may be expected to increase to the extent necessary to 
reimburse the RI for the fee payable to the agency for the cost of 
processing a cash deposit.
    Governmental jurisdictions will not be affected at all since they 
are generally neither importers nor purchasers of nonconforming motor 
vehicles.

C. Executive Order 13132 (Federalism)

    Executive Order 13132 on ``Federalism'' 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.'' Executive Order 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 Executive Order 13132, NHTSA may not issue a 
regulation that has federalism implication, 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 proposed regulation.
    The amendment adopted in this final rule will not 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 as specified in 
Executive Order 13132. That is because this final rule applies to 
importers of motor vehicles and registered importers, and not to State 
or local governments. Thus, the requirements of Section 6 of the 
Executive Order do not apply to this rulemaking action.

D. National Environmental Policy Act

    NHTSA has analyzed this action for purposes of the National 
Environmental Policy Act. The action will not have a significant effect 
upon the environment because it is anticipated that the annual volume 
of motor vehicles imported through RIs would not vary significantly 
from that existing before promulgation of the rule.

E. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988 ``Civil Justice Reform,'' the 
agency has considered whether the amendment adopted in this final rule 
will have any retroactive effect. NHTSA concludes that the amendment 
will not have any retroactive effect. Judicial review of this final 
rule may be obtained pursuant to 5 U.S.C. 702. That section does not 
require that a petition for reconsideration be filed prior to seeking 
judicial review.

F. Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
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 (adjusted for inflation with the base year 
of 1995). Before promulgating a rule for which a written assessment is 
needed, section 205 of the UMRA generally requires NHTSA to identify 
and consider a reasonable number of regulatory alternatives and to 
adopt the least costly, most cost-effective, or least burdensome 
alternative that achieves the objectives of the rule. The provisions of 
section 205 do not apply when they are inconsistent with applicable 
law. Moreover, section 205 allows NHTSA to adopt an alternative other 
than the least costly, most cost-effective, or least burdensome 
alternative if the agency publishes with the final rule an explanation 
why that alternative was not adopted. Because this final rule does not 
require the expenditure of resources beyond $100 million annually, this 
action is not subject to the requirements of sections 202 and 205 of 
the UMRA.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, a person is not required 
to respond to a collection of information by a Federal agency unless 
the collection displays a valid OMB control number. The collection of 
information resulting from the RI program, including 49 CFR Part 594, 
has been approved by OMB and assigned OMB Control No. 2127-0002, 
``Importation of Vehicles and Equipment Subject to the Federal Motor 
Vehicle Safety, Bumper and Theft Prevention Standards.'' The expiration 
date is 11/30/2010. The clearance covers 63,818 respondents, and is for 
42,413 hours. Today's final rule only establishes a fee for a 
collection of information that has already been approved by OMB, and 
does not affect the scope of the approved collection.

H. Executive Order 13045

    Executive Order 13045 applies to any rule that (1) is determined to 
be ``economically significant'' as defined under E.O. 12866, and (2) 
concerns an environmental, health, or safety risk that NHTSA has reason 
to believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, we must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned rule is preferable to other potentially 
effective and reasonably feasible alternatives considered by us. This 
rulemaking is not economically significant and does not concern an 
environmental, health, or safety risk that will have a disproportionate 
effect on children. It therefore is not subject to the Executive Order.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272) directs NHTSA 
to use voluntary consensus standards in its regulatory activities 
unless doing so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies, such as the Society of Automotive Engineers 
(SAE). The NTTAA directs the agency to provide Congress, through the 
OMB, with explanations when we decide not to use available and 
applicable voluntary consensus standards.
    After conducting a search of available sources, we have concluded 
that there

[[Page 39896]]

are no voluntary consensus standards applicable to this final rule.

J. Privacy Act

    Anyone is able to search the electronic form of all submissions 
received into any of our dockets by the name of the individual 
submitting the comment or petition (or signing the comment or petition, 
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).

K. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN that appears in the heading on the first page of this 
document to find this action in the Unified Agenda.

List of Subjects in 49 CFR Part 594

    Administrative practice and procedure, Imports, Motor vehicle 
safety.

0
In consideration of the foregoing, part 594, Schedule of Fees 
Authorized by 49 U.S.C. 30141, in Title 49 of the Code of Federal 
Regulations is amended as follows:

PART 594--SCHEDULE OF FEES AUTHORIZED BY 49 U.S.C. 30141

0
1. The authority citation for part 594 continues to read as follows:

    Authority: 49 U.S.C. 30141, 31 U.S.C. 9701; delegation of 
authority at 49 CFR 1.50.


0
2. Section 594.9 is amended by:
0
a. Revising the section heading;
0
b. Adding paragraph (d); and
0
c. Adding paragraph (e) to read as follows:


Sec.  594.9  Fee for reimbursement of bond processing costs and costs 
for processing offers of cash deposits or obligations of the United 
States in lieu of sureties on bonds.

* * * * *
    (d) Each importer must pay a fee based upon the direct and indirect 
costs the agency incurs for receipt, processing, handling, and 
disbursement of cash deposits or obligations of the United States in 
lieu of sureties on bonds that the importer submits as authorized by 
Sec.  591.10 of this chapter in lieu of a conformance bond required 
under Sec.  591.6(c) of this chapter.
    (e) The fee for each vehicle imported on and after October 1, 2008, 
for which cash deposits or obligations of the United States are 
furnished in lieu of a conformance bond, is $459.00.

    Issued on: June 25, 2008.
Nicole R. Nason,
Administrator.
[FR Doc. E8-14858 Filed 7-10-08; 8:45 am]
BILLING CODE 4910-59-P