Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50269

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety 

Administration 

49 CFR Part 393

[Docket No. FMCSA–01–10886] 

RIN 2126—AA69

Parts and Accessories Necessary for 

Safe Operation; Certification of 

Compliance With Federal Motor 

Vehicle Safety Standards; Withdrawal

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT.

ACTION: Notice of proposed rulemaking 

(NPRM); withdrawal. 

SUMMARY: The Federal Motor Carrier 

Safety Administration (FMCSA) 

withdraws its March 19, 2002, notice of 

proposed rulemaking (NPRM), which 

proposed requiring each commercial 

motor vehicle (CMV) operating in 

interstate commerce to display a label 

applied by the vehicle manufacturer or 

a registered importer to document the 

vehicle’s compliance with all applicable 

Federal Motor Vehicle Safety Standards 

(FMVSSs) in effect as of the date of 

manufacture. We issued the NPRM in 

coordination with the National Highway 

Traffic Safety Administration (NHTSA), 

which published on the same day three 

companion notices related to the 

FMVSS certification requirement. 

Although the NPRM would have 

applied to all CMVs operated in the 

United States, its greatest impact would 

have been on motor carriers domiciled 

in Canada and Mexico. In withdrawing 

the NPRM, we conclude the proposed 

FMVSS certification label requirement 

is not necessary to ensure the safe 

operation of CMVs on our nation’s 

highways. Vehicles operated by Canadadomiciled motor carriers meet Canadian 

Motor Vehicle Safety Standards 

(CMVSSs), which are consistent with 

the FMVSSs in all significant respects. 

Furthermore, since the FMVSSs critical 

to the operational safety of CMVs are 

cross-referenced in the Federal Motor 

Carrier Safety Regulations (FMCSRs), 

FMCSA, in consultation with NHTSA, 

has determined it can most effectively 

achieve the compliance of CMVs with 

the FMVSS through enforcement 

measures and existing regulations 

ensuring compliance with the FMCSRs, 

making additional FMVSS certificationlabeling regulation unnecessary.

DATES: The notice of proposed 

rulemaking published on March 19, 

2002, at 67 FR 12782, is withdrawn as 

of August 26, 2005.

FOR FURTHER INFORMATION CONTACT: Ms. 

Deborah M. Freund, Office of Bus and 

Truck Standards and Operations, (202) 

366–4009, Federal Motor Carrier Safety 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590–0001. 

Office hours are from 7:45 a.m. to 4:15 

p.m., e.t., Monday through Friday, 

except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background 

On March 19, 2002, FMCSA and 

NHTSA published four notices 

requesting public comments on 

regulations and policies directed at 

enforcement of the statutory prohibition 

on the importation of commercial motor 

vehicles that do not comply with the 

applicable FMVSSs. The notices were 

issued as follows: (1) FMCSA’s notice of 

proposed rulemaking (NPRM) proposing 

to require motor carriers to ensure their 

vehicles display an FMVSS certification 

label (67 FR 12782); (2) NHTSA’s 

proposed rule to issue a regulation 

incorporating a 1975 interpretation of 

the term ‘‘import’’ (67 FR 12806); (3) 

NHTSA’s draft policy statement 

providing that a vehicle manufacturer 

may, if it has sufficient basis for doing 

so, retroactively certify a motor vehicle 

complied with all applicable FMVSSs in 

effect at the time of manufacture and 

affix a label attesting this (67 FR 12790); 

and (4) NHTSA’s proposed rule 

concerning recordkeeping requirements 

for manufacturers that retroactively 

certify their vehicles (67 FR 12800). 

In addition to the proposal concerning 

FMVSS certification, FMCSA published 

on that same day (March 19, 2002) three 

interim rules and a final rule related to 

implementation of the North American 

Free Trade Agreement (NAFTA). The 

interim final rules were ‘‘Application by 

Certain Mexico-Domiciled Motor 

Carriers To Operate Beyond United 

States Municipalities and Commercial 

Zones on the United States-Mexico 

Border’’ (67 FR 12702), ‘‘Safety 

Monitoring System and Compliance 

Initiative for Mexico-Domiciled Motor 

Carriers Operating in the United States’’

(67 FR12758), and ‘‘Certification of 

Safety Auditors, Safety Investigators, 

and Safety Inspectors’’ (67 FR 12776). 

The final rule was ‘‘Revision of 

Regulations and Application Form for 

Mexico-Domiciled Motor Carriers To 

Operate in United States Municipalities 

and Commercial Zones on the United 

States-Mexico Border’’ (67 FR 12652). 

NHTSA and FMCSA have 

complementary responsibilities to 

ensure vehicle safety under their 

respective enabling legislation. NHTSA 

establishes manufacturing standards—

the FMVSS—under authority of the 

National Traffic and Motor Vehicle 

Safety Act of 1966 (Pub. L. 89–563) 

(Vehicle Safety Act). Part 567 of title 49, 

Code of Federal Regulations (49 CFR 

Part 567), requires manufacturers or 

registered importers of motor vehicles 

built for sale or use in the United States 

to affix a label certifying the motor 

vehicle meets the applicable FMVSSs in 

effect on the date of manufacture.

Under 49 U.S.C. 31136(a), the 

Secretary of Transportation (Secretary) 

has authority (delegated to FMCSA by 

49 CFR 1.73) to prescribe minimum 

safety standards for commercial motor 

vehicles to ensure these vehicles are 

maintained, equipped, loaded, and 

operated safely. FMCSA also has been 

delegated authority to prescribe 

requirements for the safety of operation 

and equipment of motor carriers 

operating in interstate commerce. See 49 

U.S.C. 31502(b). The agency’s regulatory 

authority encompasses the safe 

operation of CMVs in interstate and 

foreign commerce, motor carriers 

conducting these operations, and CMV 

drivers. FMCSA’s safety regulations, the 

Federal Motor Carrier Safety 

Regulations (FMCSRs), are codified in 

49 CFR parts 325–399. 

FMCSA’s withdrawal of this NPRM is 

consistent with NHTSA’s Notice of 

Withdrawal of Proposed Policy 

Statement published elsewhere in 

today’s Federal Register. NHTSA has 

decided to withdraw a 1975 

interpretation in which the agency had 

indicated that the Vehicle Safety Act is 

applicable to foreign-based motor 

carriers operating in the United States. 

Although FMCSA is withdrawing its 

NPRM, we will uphold the operational 

safety of commercial motor vehicles on 

the nation’s highways—including that 

of Mexico-domiciled CMVs operating 

beyond the U.S.-Mexico border 

commercial zones—through continued 

vigorous enforcement of the FMCSRs, 

many of which cross-reference specific 

FMVSSs. Mexico-domiciled motor 

carriers are required under 49 CFR 

365.503(b)(2) and 368.3(b)(2) to certify 

on the application form for operating 

authority that all CMVs they intend to 

operate in the United States were built 

in compliance with the FMVSSs in 

effect at the time of manufacture. 

Further, 49 CFR 365.507(c) requires 

Mexico-domiciled motor carriers to pass 

an FMCSA pre-authority safety audit 

before they are granted provisional 

authority to operate in the United States 

beyond the border commercial zones. 

This inspection will include checking 

compliance with part 393 of the 

FMCSRs and the FMVSSs they crossreference. These vehicles also will be 

subject to inspection by enforcement 

50270 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

personnel at U.S.-Mexico border ports of 

entry and at roadside in the United 

States to ensure their compliance with 

applicable FMCSRs, including those 

that cross-reference the FMVSSs. For 

vehicles lacking a certification label, it 

has been determined that enforcement 

officials could, as necessary, refer to the 

VIN (vehicle identification number) in 

various locations on the vehicle. The 

VIN will assist inspectors in identifying 

the vehicle model year and country of 

manufacture to determine compliance 

with the FMVSS or CMVSS. 

As described in an FMCSA policy 

memorandum, ‘‘Enforcement of MexicoDomiciled Motor Carriers’ SelfCertification of Compliance with Motor 

Vehicle Safety Standards,’’ if FMCSA 

finds, during the pre-authority audit or 

subsequent inspections, that a Mexicodomiciled carrier has falsely certified its 

vehicles as FMVSS compliant, we may 

use this information to deny, suspend, 

or revoke the carrier’s operating 

authority or certification of registration 

or issue appropriate penalties for the 

falsification. We are issuing this policy 

memorandum to FMCSA field offices 

and our State enforcement partners 

under the Motor Carrier Safety 

Assistance Program (MCSAP). A copy of 

the memorandum is available in the 

docket. 

Discussion of Comments to the NPRM 

The following organizations 

commented on the agency’s NPRM to 

require that motor carriers ensure their 

vehicles display an FMVSS certification 

label: Advocates for Highway and Auto 

Safety (Advocates); the Amalgamated 

Transit Union (ATU); the American 

Insurance Association (AIA); the 

American Trucking Associations (ATA); 

the Embassy of Canada (Canada); the 

Canadian Transportation Equipment 

Association (CTEA); the Canadian 

Trucking Alliance (CTA); the Canadian 

Vehicle Manufacturers Association 

(CVMA); the Commercial Vehicle Safety 

Alliance (CVSA); the California 

Highway Patrol (CHP); Greyhound 

Lines, Inc. (Greyhound); the 

International Brotherhood of Teamsters 

(IBT); Manitoba Transportation and 

Government Services (Manitoba); the 

Missouri State Highway Patrol, 

Commercial Vehicle Enforcement 

Division (Missouri CVED); the National 

Truck Equipment Association (NTEA); 

Public Citizen; the Transportation 

Trades Department, AFL-CIO (TTD); 

and the Truck Manufacturers 

Association (TMA). 

Many commenters submitted 

identical comments to the dockets for 

the FMCSA and NHTSA proposals 

published on March 19, 2002, as well as 

to the four other NAFTA-related rules 

FMCSA published that day. The 

comments summarized below are 

discussed in the context of FMCSA’s 

NPRM regarding the FMVSS 

certification label. 

General Comments

Most of the commenters expressed 

concern that the proposal would require 

a complex and difficult-to-implement 

process involving replacement of 

compliance labels and re-creation of 

manufacturers’ performance test 

documentation for vehicles long in use. 

Many commenters noted this would not 

address the fundamentals of what is 

necessary to ensure CMVs operate 

safely. They questioned the safety 

benefits of requiring a certification label, 

given that all CMVs operated in the 

United States are required both to 

comply with the FMCSRs and to pass 

roadside inspections conducted by 

safety officials according to standard 

Federal inspection procedures. 

CVSA stated the consensus among its 

member jurisdictions was ‘‘that 

implementation of the NPRM would not 

resolve any safety issues, but instead 

would create a significant economic 

effect on cross-border trade, and 

domestic commercial transportation.’’

TMA supported the agency’s efforts to 

ensure commercial motor vehicles 

manufactured in Canada and Mexico 

meet the same safety standards required 

of CMVs manufactured for the U.S. 

market. However, TMA believed both 

the FMCSA proposal and NHTSA’s 

proposed policy statement on 

retroactive certification invited 

compliance problems and could impact 

U.S. motor carriers adversely. CVMA 

supported TMA’s position, adding it 

believes better opportunities exist for 

improving CMV safety through vehicle 

maintenance and enforcement of safety 

regulations. It cited programs adopted 

by the Province of Ontario as examples. 

CTEA, a trade association 

representing vehicle and equipment 

manufacturers and the provider of a 

label service to Canadian and U.S. 

commercial motor vehicle 

manufacturers registered with Transport 

Canada and NHTSA, was encouraged 

that FMCSA addressed the issue of 

certification compliance labels. CTEA 

believes, however, the most effective 

way to improve CMV roadworthiness is 

for operators to adhere to 

manufacturers’ maintenance schedules 

and practices, and for recommended 

inspection procedures to be used. 

NTEA, a U.S. trade association 

representing distributors of multistageproduced, work-related trucks, truck 

bodies, and equipment, expressed a 

number of concerns about the 

practicality of implementing the 

proposed requirements. NTEA’s 

concerns are discussed in detail under 

Reciprocity with Canadian Standards

and the two sections on Replacement 

Labels below. 

ATA stated it supports truck safety 

achieved through ‘‘reasonable and costeffective measures,’’ applied 

appropriately according to operations 

conducted and equipment used. ATA 

believes achieving safe operations does 

not depend on the presence of a 

certification label. It asserted FMCSA 

has provided no data indicating vehicles 

without certification labels operate 

unsafely, adding it is unaware of the 

existence of such data. CVSA, CTA, 

Missouri CVED, and Manitoba made 

similar comments. 

Canada asserted ‘‘there is no credible 

case that extending [the FMVSS labeling 

requirements] to Canadian commercial 

vehicles would result in increased 

safety.’’ Canada referred to studies 

showing Canadian CMVs operating in 

the United States to be as safe as, or 

safer than, U.S.-based CMVs, and 

claimed it would be difficult, costly, 

and in some cases impossible to comply 

with the proposed regulation. Canada 

also anticipated the proposal would 

have a serious negative impact on crossborder trade and tourism, as well as 

violate United States obligations under 

both NAFTA and the Marrakesh 

Agreement Establishing the World 

Trade Organization. Canada contended 

the rule would provide less favorable 

treatment to Canadian motor carriers 

than to U.S. carriers, and would restrict 

trade more than is necessary to achieve 

safety objectives. 

CTA stated the safety of Canadian 

motor carriers operating in the United 

States would not be diminished absent 

the provisions of the NPRM. CTA 

estimates there are at least 250,000 

CMVs regularly engaged in cross-border 

traffic, but believes the number could be 

much higher: ‘‘Since carriers do not 

segregate their fleets into ‘domestic’ and 

‘international’ equipment, from a 

practical standpoint, all equipment in 

fleets with cross-border operations 

would fall under the proposed labeling 

requirements.’’

Seven commenters favored the 

proposal: 

Greyhound contended Mexicomanufactured buses ‘‘did not comply 

with the FMVSS when they were 

manufactured and do not comply with 

the FMVSS and the Federal Motor 

Carrier Safety Regulations (FMCSR) 

now,’’ and asserted it would be highly 

inappropriate for DOT to allow these 

vehicles to operate in the United States. 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50271

ATU stated it concurs with Greyhound’s 

comments. 

Advocates, acknowledging NAFTA 

requires elimination of trade barriers 

and unnecessary burdens on commerce, 

stressed that the treaty ‘‘was not 

intended to require the evasion or 

suspension of established motor vehicle 

regulations and safety standards.’’ AIA 

supported Advocates’ position.

Citing the requirements of the Vehicle 

Safety Act and a 1975 interpretation 

letter issued by NHTSA, CHP supported 

the proposal for the certification and 

labeling requirements. 

Public Citizen stated the proposed 

NHTSA and FMCSA regulations ‘‘close 

an unofficial loophole’’ in the agencies’

regulations. IBT also supported the 

FMCSA proposal. 

FMCSA Response: Generally, U.S. 

motor carriers operating CMVs (as 

defined in 49 CFR 390.5) in interstate 

commerce have access only to vehicles 

that either were manufactured 

domestically for use in the United States 

and have the required certification label 

or were imported into the United States 

in accordance with applicable NHTSA 

regulations, including certification 

documentation requirements of 49 CFR 

Part 567. Furthermore, FMCSA’s safety 

regulations incorporate and crossreference the FMVSSs critical to 

continued safe operation of CMVs. 

Finally, with only a few minor 

differences, the Canadian Motor Vehicle 

Safety Standards (CMVSSs) mirror the 

FMCSRs. 

Although Mexico-domiciled vehicles 

are less likely to display FMVSS or 

CMVSS certification labels, FMCSA 

believes continued strong enforcement 

of the FMCSRs in real-world operational 

settings, coupled with existing 

regulations and enhanced enforcement 

measures, will ensure the safe operation 

of Mexico-domiciled CMVs in interstate 

commerce. Under the MCSAP, FMCSA 

and its State and local partners conduct 

approximately 3 million roadside 

vehicle and driver inspections each year 

on vehicles (domiciled in the United 

States, Canada, or Mexico) operating in 

interstate commerce. Enforcement of the 

FMCSRs, and by extension the FMVSSs 

they cross-reference, is the bedrock of 

these compliance assurance activities. 

Therefore, after careful consideration, 

FMCSA has concluded it is not 

necessary to amend the FMCSRs to 

require commercial motor vehicles to 

display an FMVSS certification label in 

order to achieve effective compliance 

with the FMVSSs. 

Simply requiring CMVs to bear 

FMVSS certification labels would not 

ensure their operational safety. An 

FMVSS label certifying compliance with 

performance standards applicable to 

lights, brakes, and other wear items does 

not ensure real-world safety in the 

absence of compliance with the 

operational and maintenance standards 

imposed by the FMCSRs, especially in 

the case of vehicles built many years 

ago. Although the presence or absence 

of an FMVSS compliance label can 

certainly provide a useful tool in this 

regard, inspection of the CMV’s 

compliance with the FMCSRs remains 

the benchmark by which enforcement 

officials identify and remove from 

service vehicles likely to break down or 

cause a crash. The American public is 

better protected by the FMCSRs than 

solely through a label indicating a CMV 

was originally built to certain 

manufacturing performance standards. 

Congress intended the FMVSSs and 

FMCSRs as mutually supportive 

systems of regulations—one 

manufacturing, the other operational. In 

the Vehicle Safety Act, which mandated 

creation of the manufacturing standards, 

Congress specified that the preexisting 

motor carrier safety regulations 

promulgated by the Interstate Commerce 

Commission should not differ in 

substance or impose any lesser standard 

of performance than the manufacturing 

standards. (See also Senate Commerce 

Committee Report No. 1301, June 23, 

1966.) After the establishment of DOT 

on April 1, 1967, the FMVSSs and 

motor carrier safety regulations (now 

FMCSRs) were in fact coordinated 

under a single agency, the Federal 

Highway Administration, wherein they 

were redesignated in December 1968 

under newly established chapter III of 

title 49 of the Code of Federal 

Regulations (33 FR 19700, Dec. 25, 

1968). 

Since that time, care has been taken 

in rulemaking proceedings amending 

the FMVSSs or FMCSRs to effectuate 

the Congressional intent of consistent 

and mutually supportive regulations. 

For example, FHWA and the National 

Highway Safety Bureau (NHSB) (which 

became part of NHTSA when that 

agency was established in 1971) 

coordinated same-day publication of 

complementary regulatory proposals on 

August 15, 1970—with NHSB proposing 

an FMVSS on bus push-out windows to 

provide a complementary 

manufacturing standard to an existing 

motor carrier safety regulation, while 

the FHWA proposed to amend its 

existing regulations concerning window 

construction in order to be consistent 

with the NHSB proposal. (The FHWA 

and NHSB proposals were published at 

35 FR 13024 and 13025, respectively, 

and FHWA’s final rule [37 FR 11677, 

June 10, 1972] made the agency’s bus 

window requirements consistent with 

the new FMVSS standard [No. 217, 

published at 37 FR 9395 on May 10, 

1972]). The most recent example is 

FMCSA’s final rule, ‘‘Parts and 

Accessories Necessary for Safe 

Operation; General Amendments’’

(Docket Number FMCSA–1997–2364), 

which updates and expands FMCSR 

cross-references to FMVSSs and 

includes applicable engineering 

citations. As a result of the 

Congressional directive that the 

FMCSRs provide for performance no 

less than the FMVSSs and the history of 

consistency between the two bodies of 

regulations, enforcement of the FMCSRs 

assures compliance with the FMVSSs 

cross-referenced therein—and, more 

important, provides for safety on the 

highways.

Reciprocity With Canadian Standards 

TMA recommended either a U.S. or 

Canadian certification label be accepted 

for commercial motor vehicles 

manufactured before the effective date 

of the NHTSA policy statement on 

retroactive certification. The only major 

differences between the U.S. and 

Canadian manufacturing standards are 

the effective dates (also called 

compliance dates) for the requirements 

for antilock brake systems (ABS) and 

automatic brake adjusters. Since all 

vehicles operating in the United States 

must comply with the FMCSRs, and the 

FMCSRs for automatic brake adjusters 

(§ 393.53) and ABS (§ 393.55) require 

CMVs to comply with FMVSS No. 105 

(for hydraulic-braked vehicles) and 

FMVSS No. 121 (for air-braked vehicles) 

applicable at the time the vehicle was 

manufactured, the different compliance 

dates for U.S. and Canadian standards 

are moot. ATA, CTA, and NTEA also 

stressed the strong similarities between 

the U.S. and Canadian standards. 

CVMA asserted the potential safety 

benefits of retroactive certification of 

CMVs built to comply with Canadian 

standards would be minimal and, under 

the proposal, retroactive certification 

would also include modifications made 

to vehicles after manufacture. It noted 

this would require not only 

consideration of the records of original 

and secondary manufacturers but also 

evaluation of repairs and modifications 

made by vehicle owners. 

CVSA and CTA strongly encouraged 

DOT to consider developing a 

reciprocity agreement with Canada 

because the CMVSSs are so similar to 

the FMVSSs. Manitoba noted that some 

Canadian standards are ‘‘more stringent 

than the U.S. standards,’’ citing 

requirements for daytime running lights 

and underride protection. 

50272 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

CTEA stated ‘‘* * * Canadian 

manufacturers registered with Transport 

Canada are entitled to affix a National 

Safety Mark (NSM) to their production. 

These same companies are registered 

with NHTSA for the purpose of 

exporting to the U.S. and they have met 

the label requirements for the U.S.’’

TMA, CTEA, NTEA, and CTA expressed 

similar views. 

CVSA, CTEA, and Manitoba believed 

Canadian authorities might require U.S.-

manufactured vehicles entering Canada 

to display a CMVSS certification label, 

leading to disruptions in cross-border 

commerce. 

Canada cited a 30-year history of 

‘‘close and effective collaboration’’ with 

the United States to develop and 

implement CMV manufacturing and 

operating standards. It provided 

extensive analysis comparing the safety 

records of U.S. and Canadian motor 

carriers, citing results of FMCSA and 

DOT studies. 

FMCSA Response: FMCSA, in 

consultation with NHTSA, agrees U.S. 

and Canadian CMV manufacturing 

standards are comparable in all 

significant respects. As TMA noted, the 

differences in effective dates for the 

Canadian and U.S. requirements for 

ABS and automatic brake adjusters are 

moot, because the effective dates of the 

FMVSS requirements, as incorporated in 

part 393 of the FMCSRs, determine 

whether a CMV is compliant with these 

standards. For example, a Canadadomiciled vehicle bearing a CMVSS 

label and manufactured on or after the 

effective date of NHTSA’s ABS 

requirement (and before the effective 

date of Canada’s ABS requirement) 

would be in violation of the FMCSRs 

when operating in the United States 

unless it were equipped with ABS. This 

distinction would have held even if the 

vehicle met the certification labeling 

requirement proposed in the NPRM. 

The same principle applies to U.S.-

required conspicuity treatments, brake 

adjusters, brake adjustment indicators, 

and rear impact guards. The effective 

dates for FMVSSs incorporated in the 

FMCSRs apply equally to CMVs 

domiciled in the United States, Canada, 

and Mexico. 

Moreover, an FMVSS or CMVSS 

certification label denotes only the 

vehicle’s compliance with the U.S. or 

Canadian manufacturing standards 

applicable to newly manufactured 

vehicles. The certification label, while a 

useful guidepost, is not the most 

important basis for determining whether 

a vehicle is in current safe operating 

condition. CMV operational safety 

compliance is best addressed in terms of 

these vehicles’ compliance with the 

FMCSRs. 

In response to Manitoba’s comment 

regarding rear underride protection and 

daytime running lamps, FMCSA’s rules 

concerning rear impact guards were 

revised on September 1, 1999, to require 

motor carriers to ensure their trailers 

manufactured on or after January 26, 

1998, are equipped with rear impact 

guards meeting the requirements of 

FMVSS Nos. 223 and 224 (49 CFR 

571.223 and 571.224). FMVSS No. 108 

(49 CFR 571.108) concerning lamps and 

reflective devices was amended on 

January 11, 1993, to ensure daytime 

running lights installed voluntarily on 

newly manufactured vehicles meet 

certain performance requirements. 

Section 393.11 of the FMCSRs crossreferences FMVSS No. 108 and requires 

motor carriers to ensure their CMVs are 

maintained to comply with this 

requirement.

Canada’s requirements for conspicuity 

treatment of trailers and semitrailers 

provide several options for the colors 

and placement of retroreflective 

material; one of these options meets the 

requirements of FMVSS No. 108. 

FMCSA has advised Canadian 

manufacturers, industry groups, and 

motor carriers that 49 CFR 393.11 

requires all Canada-based trailers 

operated in the United States to comply 

with the FMVSS No. 108 requirements 

for conspicuity treatments on trailers 

manufactured on or after December 1, 

1993. Section 393.11 cross-references 

FMVSS No. 108 and requires motor 

carriers to ensure CMVs manufactured 

after March 7, 1989, meet all applicable 

requirements of FMVSS No. 108 in 

effect on the date of manufacture. In 

addition, § 393.13 provides flexibility 

for retrofitting conspicuity treatments 

for trailers and semitrailers 

manufactured before December 1, 1993, 

by allowing the use of other colors or 

color combinations along the sides or 

lower rear of semitrailers and trailers 

until June 1, 2009. 

Safety of Vehicles Manufactured for the 

Mexican Market 

Greyhound expressed concern about 

the enforceability of the NPRM 

provisions: ‘‘We state unequivocally 

that the vast majority of Mexicanmanufactured buses did not comply 

with the FMVSS when they were 

manufactured and do not comply with 

the FMVSS and the Federal Motor 

Carrier Safety Regulations (FMCSR) 

now. Many of these buses do not 

comply with the FMVSS/FMCSR 

standards for fundamental safety items 

such as brakes, fuel systems, windows, 

and emergency exits.’’ Greyhound 

believed the proposed requirement for 

the FMVSS certification label ‘‘should 

ultimately ensure compliance with the 

FMVSS,’’ but recommended FMCSA 

take additional action in the near term. 

Specifically, FMCSA should 

automatically deny provisional 

operating authority to motor carriers 

discovered during onsite safety audits to 

be noncompliant with the FMCSRs. 

ATA, while acknowledging Mexican 

federal safety standards are less similar 

to the U.S. requirements than are the 

Canadian standards and do not include 

a requirement for certification labels, 

nevertheless contended the Mexican 

standards help ensure new vehicles 

incorporate needed safety features. It 

asserted vehicle manufacturers the 

world over are interested in building 

equipment that will be safe ‘‘if driven 

correctly and maintained properly.’’

ATA noted the requirements of the 

FMCSRs adequately address the safe 

operation of CMVs, whereas a label 

describes the vehicle’s safety 

compliance only as of the date of 

manufacture. 

CVSA stated ‘‘Mexican safety 

standards do not require certification 

labels and do not mirror those of the 

U.S. as closely as Canadian standards, 

but their efforts to match U.S. standards, 

and in some cases surpass them (as with 

more restrictive drug and alcohol 

testing) ensures that important safety 

standards are being met.’’ CVSA 

maintained there is no evidence to 

suggest Mexico-based vehicles ‘‘provide 

less than desirable safety performance.’’

In addition, CVSA stated the 

certification label ‘‘does not provide 

evidence that the vehicle is safe, and it 

is impractical to place a vehicle Out of 

Service just because it is lacking a 

certification label.’’

FMCSA Response: Regardless whether 

a CMV bears a certification label from a 

manufacturer or a registered importer, it 

must comply with all applicable 

FMCSRs, including those that crossreference FMVSS requirements in effect 

on the date of manufacture. As noted 

earlier in this document, the 

certification label does not, in and of 

itself, fulfill motor carriers’ obligations 

to comply with applicable FMCSRs—

whereas compliance with FMCSRs does 

provide effective confirmation of 

compliance with the cross-referenced 

FMVSSs. 

With regard to Greyhound’s 

comments about denying provisional 

operating authority to Mexico-domiciled 

motor carriers whose CMVs are found 

during on-site audits to be 

noncompliant with the FMCSRs, 

Mexico-domiciled carriers are required 

under 49 CFR 365.503(b)(2) and 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50273

368.3(b)(2) to certify on the application 

form for operating authority that all 

CMVs they intend to operate in the 

United States were built in compliance 

with the FMVSSs in effect at the time 

of manufacture. If the motor carrier were 

unable to make the necessary 

certification on its application, the 

agency would deny its request to 

operate in the United States. 

Moreover, as noted in the Background

section of this document, 49 CFR 

365.507(c) requires Mexico-domiciled 

motor carriers to pass an FMCSA preauthority safety audit before they are 

granted provisional authority to operate 

in the United States beyond the border 

commercial zones. The pre-authority 

safety audit evaluation criteria are in 

Appendix A to Subpart E of 49 CFR Part 

365. If a pre-authority safety audit 

discloses an applicant has falsely 

certified its vehicles as FMVSS 

compliant, FMCSA may use this 

information to deny the application for 

provisional authority. In addition, as 

prescribed in the FMCSA policy 

memorandum discussed previously, if a 

motor carrier is discovered to be 

operating noncompliant vehicles in the 

United States after receiving provisional 

operating authority, the agency could 

suspend or revoke that authority based 

on the carrier’s false certification.

The major potential obstacle to 

FMVSS conformance for truck tractors 

manufactured for the Mexican market 

appears to be the requirement for 

installation of ABS, applicable to 

vehicles manufactured on or after March 

1, 1997. Because Mexico’s vehicle safety 

regulations have not to date required 

ABS, many Mexico-based vehicles 

manufactured on or after March 1, 1997, 

did not include this feature and 

therefore do not bear an FMVSS 

certification label. However, 

information provided by the Truck 

Manufacturers Association in a 

September 16, 2002, letter to NHTSA 

Administrator Jeffrey W. Runge, M.D., 

and former FMCSA Administrator 

Joseph M. Clapp (available in the 

docket) offers a more complete picture. 

According to TMA, U.S. 

manufacturers have manufactured and 

sold nearly 60,000 Class 8 trucks and 

tractors for the Mexican market since 

1993. Roughly 80 percent of those 

vehicles were built in compliance with 

the FMVSSs and were so certified. 

KenMex, a subsidiary of Paccar, Inc., 

manufactures Kenworth trucks for sale 

in Mexico. KenMex began applying 

FMVSS certification labels in 1993 to all 

vehicles built for the Mexican market 

that met U.S. safety standards. 

Approximately 95 percent of those 

vehicles were equipped with ABS. 

International Truck and Engine 

Corporation trucks sold in Mexico 

complied with the FMVSSs, except that 

ABS could be deleted at the customer’s 

option. However, the majority of 

International’s tractors built and sold in 

Mexico from July 1999 until September 

2001 had ABS, as did some vehicles 

manufactured between 1996 and 1999. 

Freightliner sold a limited number of 

vehicles to customers in Mexico before 

1997, and all vehicles in three model 

lines sold in Mexico were certified to 

meet the FMVSSs. Volvo began selling 

U.S-manufactured trucks in Mexico in 

1998, virtually all of them FMVSScertified and bearing the requisite 

certification labels. We have 

summarized this information in the 

table below.

MANUFACTURERS’ HISTORY OF TRUCKS AND TRUCK TRACTORS MANUFACTURED AND/OR SOLD IN MEXICO

Manufacturer Manufactured in 

Mexico Sold in Mexico Notes 

Ford .............................................. Yes: medium-duty .. No .....................

Freightliner LLC ............................ Sold limited number of vehicles in Mexico before 1997. 

Century Class ........ Yes ................... All have full U.S. certification. 

Columbia ................ Yes ................... All have full U.S. certification. 

Argosy .................... Yes ................... All have full U.S. certification. 

FLD ........................ Yes ................... 50% have full U.S. certification. 50% have label issues (tire labels, 

labels in Spanish). Approximately 20% of FLD vehicles do not 

have ABS. 

Sterling ................... Yes ................... 10% have full U.S. certification. 90% have label issues, but have 

ABS. 

General Motors ............................. No .......................... Yes ................... Sells only incomplete vehicles in Mexican market. 

International Truck & Engine ........ Yes ......................... Yes ................... 9200, 9400: ABS was a ‘‘delete’’ option 3/97–9/01. 

11/96–11/99: 1996 9000s do not bear FMVSS labels, but vehicles 

with ABS could be certified. 

Escobedo plant: 7/99–9/01: ABS ‘‘delete’’ option for 9000s, but 

majority had ABS. Starting 9/01, ABS no longer a ‘‘delete’’ option. 

4000, 7000 series: tractors with ABS would have label. 

Isuzu Motors ................................. No .......................... No .....................

Mack Trucks ................................. No .......................... No ..................... Was in market for 1 year, sold 13 tractors, 12 chassis. Of the 13 

tractors, 2 labeled & 6 retrofittable. 

PACCAR Inc. ................................ Yes—KenMex ........ Yes ................... At least 95% of the 40,000 T600, T800, T2000 and W900 vehicles 

have ABS. 1993 onward: FMVSS-compliant vehicles bear labels. 

Volvo Trucks NA ........................... No .......................... Yes ................... 3776 VN tractors labeled, 45 not labeled (no ABS). 2 VHD tractors 

labeled. 479 miscellaneous incomplete vehicles with chassis cab 

labels. 

Based on the information presented in 

the table, we believe most model year 

1996 and later CMVs manufactured in 

Mexico may meet the FMVSSs. (Since 

NHTSA’s ABS requirement applies only 

to vehicles built on or after March 1, 

1997, Mexico-domiciled vehicles 

manufactured before that date are 

required to comply with the FMVSSs 

applicable when they were built, but not 

with the ABS requirement.) Mexicobased vehicles manufactured on or after 

March 1, 1997, and not equipped with 

ABS would, in theory, need to be 

retrofitted with ABS to achieve 

compliance with the FMCSRs. 

From a practical standpoint, however, 

this is not a viable option. Information 

50274 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

presented in the preamble to the Federal 

Highway Administration’s final rule on 

ABS (63 FR 24454, May 4, 1998) 

explains the difficulty NHTSA 

researchers experienced in retrofitting 

commercial motor vehicles with ABS 

for the purpose of conducting a NHTSA 

fleet study. In that study, a relatively 

high number of truck tractors—116 out 

of 200, or 58 percent—experienced 

installation/pre-production designrelated problems. Although the 

researchers attributed this to the 

‘‘newness’’ of the systems in North 

American applications, we believe the 

percentage of malfunctions would be 

much greater if motor carriers were 

required to attempt retrofitting 

innumerable configurations of airbraked vehicles. 

The NHTSA fleet study was a ‘‘bestcase scenario’’ for retrofitting ABS, in 

that the vehicle and brake 

manufacturers (as well as wheel and 

hub manufacturers) worked together to 

complete the ABS installations. Even 

with this collaborative effort of 

experienced engineers, numerous 

problems related to the retrofitting 

process surfaced during the study. 

FMCSA believes the NHTSA research is 

strongly indicative of the types of 

technical problems that could be 

expected if motor carriers were required 

to retrofit vehicles with ABS. As ABS 

retrofitting is not practicable, vehicles 

manufactured on or after March 1, 

1997—the effective date of NHTSA’s 

ABS requirement (FMVSS number 

121)—will satisfy U.S. safety 

requirements only if originally equipped 

with ABS. For a Mexico-domiciled CMV 

manufactured after March 1, 1997, 

FMCSA and State enforcement officials 

will rely closely on inspection of the 

vehicle to determine its compliance 

with the ABS requirement at § 393.55. 

Consumer Responsibility: Certification 

Label 

ATA asserted the statutory language 

of Section 108 of the Vehicle Safety Act 

‘‘precludes the need for the consumer to 

either apply or retain the certification 

label.’’ ATA further contended Section 

114 of the Vehicle Safety Act is a 

requirement placed upon vehicle 

manufacturers and distributors, and the 

label serves as a notification to the 

dealer (or to another distributor) that the 

manufacturer(s) of the vehicle met the 

FMVSSs as of a given date. ATA 

provided photographs of additional 

labels affixed by some manufacturers, 

reading ‘‘Warning: Data shown on 

vehicle identification plate is correct on 

date of manufacture. Alterations made 

may affect data shown.’’

CVSA also contended the proposals 

would expand what, in its view, has 

been the historical use of certification 

labels ‘‘to provide buyer protection at 

the point of sale—in an attempt to 

regulate vehicles in interstate 

commerce. 

FMCSA Response: Motor carriers are 

responsible for ensuring vehicles 

introduced into their fleets are 

maintained to the safety standards of the 

FMCSRs, including those crossreferencing the FMVSSs. However, 

FMCSA acknowledges the significant 

operational concerns raised by 

commenters. Prohibiting the operation 

of CMVs that are compliant with the 

FMVSSs and the FMCSRs, yet lack a 

certification label, would place an 

economic burden on motor carriers and 

vehicle manufacturers without 

enhancing commercial motor vehicle 

safety. 

When it is necessary to determine 

whether the vehicle was certified by the 

manufacturer as complying with the 

FMVSSs, or was capable of certification, 

alternative identification methods are 

available. For example, Federal and 

State enforcement officials conducting 

roadside inspections could rely on a 

VIN and registration in a U.S. or 

Canadian jurisdiction as evidence of 

FMVSS compliance. The requirements 

for the VIN are described in 49 CFR Part 

565. Section 565.4(e) requires the VIN of 

each vehicle to appear clearly and 

indelibly either upon a part of the 

vehicle (other than the glazing) that is 

not designed to be removed except for 

repair, or upon a separate plate or label 

permanently affixed to such a part. The 

VIN must have 17 characters and be 

formatted so basic information about the 

vehicle (such as country of manufacture, 

model year, identity of the 

manufacturer) can be quickly 

determined. Canada’s requirements 

concerning the VIN are similar. 

In addition to being marked on each 

vehicle, the VIN commonly is used to 

identify a vehicle on registration 

documents. Most State laws require 

these documents to be carried in the 

vehicle at all times. These registration 

documents provide a secondary method 

for safety officials to verify a CMV’s 

model year and VIN and, by extension, 

the FMVSSs applicable to the particular 

CMV. 

Generally, CMVs may not be 

registered in the United States or 

Canada unless the vehicle was 

manufactured for sale or use in either of 

those countries. Both countries have 

laws and regulations concerning the 

importation of vehicles for sale or use 

that effectively preclude U.S.- and 

Canada-based motor carriers from 

purchasing or leasing vehicles for use in 

their respective countries unless the 

vehicles were originally manufactured 

for, or subsequently modified for, such 

use. Under 49 U.S.C. 30112 and 30115 

and 49 CFR parts 567 and 571, a U.S. 

motor carrier cannot purchase or use an 

imported vehicle manufactured for use 

in a foreign country unless (1) the 

original manufacturer certified, at the 

time of manufacture, that the vehicle 

complied with the applicable FMVSSs, 

or (2) a registered importer certified the 

vehicle was modified to comply with 

applicable U.S. safety standards. 

The situation for Mexico-based CMVs 

is somewhat different. The government 

of Mexico has not, to date, established 

a set of vehicle manufacturing standards 

comparable in scope to the FMVSSs or 

CMVSSs, nor does it have requirements 

for certification or compliance with 

such standards. Hence, there is less 

assurance that vehicles imported into 

Mexico, or manufactured for the 

domestic market in Mexico, meet safety 

requirements comparable to those of the 

United States or Canada. 

Therefore, we must rely on a strong 

verification program to confirm 

certifications (on the application form 

for FMCSA operating authority) by 

Mexico-domiciled carriers that they will 

operate only FMVSS-compliant CMVs 

in the United States beyond the border 

commercial zones. As noted in the 

Background section of this document, 

under FMCSA’s enforcement policy 

memorandum these vehicles will be 

subject to inspection by enforcement 

personnel during the pre-authority 

safety audit and while operating in 

interstate commerce to ensure their 

compliance with applicable FMCSRs, 

including those that cross-reference the 

FMVSSs. If FMCSA finds a Mexicodomiciled carrier has falsely certified its 

vehicles as compliant, we may use this 

information to deny, suspend, or revoke 

the carrier’s operating authority or 

certification of registration or issue 

appropriate penalties for the 

falsification. 

Replacement Labels: General 

TMA, ATA, and CVSA believed, 

contrary to FMCSA’s assertion, the 

proposal would affect U.S. carriers more 

than their foreign counterparts. 

According to these and other 

commenters, safety certification labels, 

particularly those on trailers and 

converter dollies, often do not remain 

affixed or legible for the life of the 

vehicle. 

ATA, CTA, NTEA, CTEA, and Canada 

raised numerous questions concerning 

the implementation of a requirement to 

obtain replacement labels. Among their 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50275

concerns: Replacement doors and cabs 

do not bear certification labels, 49 CFR 

§ 567.4(b) prohibits labels from being 

transferred, and labels are designed to 

be self-defacing if removal is attempted. 

ATA, CTA, and Canada noted it would 

be impossible to obtain replacement 

certification labels from bankrupt or 

defunct manufacturers. NTEA 

recommended allowing motor carriers 

to replace certification labels, while 

TMA suggested a single, NAFTA-wide 

safety certification label acceptable to 

all three NAFTA nations. 

ATA estimated the loss of direct 

annual revenue just from trailers 

prohibited from operating without 

certification labels would exceed $200 

million. 

FMCSA Response: FMCSA 

acknowledges the commenters’

concerns. The withdrawal of the NPRM 

renders this issue moot.

Replacement Labels: Special and 

Rebuilt Vehicles 

ATA, CTA, NTEA, and CVSA 

questioned how FMCSA would address 

the labeling of CMVs manufactured in 

two or more stages, noting that 49 CFR 

Part 568 requires labeling for these 

vehicles. ATA asserted consumerperformed repairs, such as replacing 

original tires with low-profile tires, 

‘‘invalidate portions of the certification 

label.’’

TMA, ATA, and NTEA contended the 

proposed rule could eliminate the use of 

glider kits and service cabs (repair parts 

sold by truck manufacturers to repair a 

relatively new vehicle that suffered 

extensive body damage but has a 

salvageable engine, transmission, drive 

axles, or other major components). They 

reasoned a glider kit manufacturer 

cannot provide a certification label for 

a repaired vehicle based on the 

construction of the original vehicle, 

since it has no knowledge of the extent 

or quality of the repair. 

Missouri CVED questioned how 

FMCSA would treat the labeling of 

homemade trailers or other equipment 

made by persons who are not 

manufacturers or equipment fabricators, 

noting the State of Missouri requires 

these vehicles to have a VIN affixed by 

the manufacturer. If a vehicle does not 

have a VIN, the Missouri Department of 

Revenue issues it a ‘‘DRX’’ plate and 

number. 

FMCSA Response: As stated 

previously, by virtue of withdrawing the 

NPRM, we are retracting the proposed 

requirement for certification labels. 

In response to the concern regarding 

the use of glider kits and service cabs, 

this matter is addressed in 49 CFR 

571.7(e), Combining new and used 

components. If a glider kit or a service 

cab were used to replace an original cab 

that had been damaged beyond repair, 

and the cab were fitted with at least two 

of the three components (engine, 

transmission, drive axles) from another 

vehicle, the resulting vehicle would not 

be considered newly manufactured and 

its VIN would be the same as that of the 

vehicle used to provide at least two of 

the three components. 

In response to Missouri CVED’s 

comment concerning homemade 

trailers, the FMVSSs apply to every 

newly manufactured motor vehicle 

without exception. 

With regard to State-assigned VINs, 

such as the ‘‘DRX’’ plate mentioned by 

Missouri CVED, the Vehicle Equipment 

Safety Commission (VESC) issued 

Regulation VESC–18 in August 1979, 

‘‘Standardized Replacement Vehicle 

Identification Number System.’’ (The 

VESC no longer exists, but its materials 

are currently available through the 

American Association of Motor Vehicle 

Administrators of Arlington, Virginia.) 

Regulation VESC–18 serves as a model 

procedure for States to assure that all 

vehicles subject to title and/or 

registration are readily identifiable 

through verification of a manufacturer’s 

VIN or State-issued VIN. A copy of 

Regulation VESC–18 is in the docket. 

Roadside Inspections 

CVSA requested FMCSA to report on 

the differences among U.S., Mexican, 

and Canadian vehicle equipment 

manufacturing standards for the benefit 

of manufacturers, registered importers, 

and roadside inspectors. 

Advocates contended FMCSA would 

be unable to ensure motor carriers’

compliance with the FMCSRs, and with 

those FMVSSs cross-referenced in the 

FMCSRs, in the absence of certification 

labels or documentation.

ATA questioned how enforcement 

officials at roadside could readily verify 

FMVSS compliance of a CMV 

manufactured in multiple stages. ATA 

also inquired how trailers entering the 

United States by rail or ship would be 

inspected, who would perform the 

inspections, and how nonconforming 

trailers would be handled. 

Canada expressed concerns about 

potential enforcement activities by the 

U.S. Customs Service (now part of the 

Department of Homeland Security, 

under the Directorate of Border and 

Transportation Security) of vehicles-asimports at the border, arguing these 

activities could paralyze cross-border 

operations and trade. Additionally, 

Canada feared the potentially chilling 

effect of heavy fines assessed for 

vehicles not properly labeled, pointing 

out this could prevent Canadian motor 

carriers from sending their CMVs into 

the United States. 

FMCSA Response: NHTSA has 

evaluated the differences between the 

FMVSSs and CMVSSs applicable to 

heavy trucks and buses, and includes 

this analysis in its Notice of withdrawal 

of its policy statement on retroactive 

certification of CMVs by vehicle 

manufacturers, published elsewhere in 

today’s Federal Register. 

We recognize the concerns expressed 

by CVSA. However, Mexico has not 

established a comprehensive set of 

federal CMV manufacturing standards 

comparable to U.S. and Canadian 

standards, or based upon a statutory or 

regulatory scheme similar to those used 

in the United States and Canada. 

Therefore, any meaningful transnational 

comparison of manufacturing standards 

would be limited to the FMVSS and 

CMVSS. NHTSA and Transport Canada, 

as the regulatory agencies responsible 

for implementing and enforcing their 

respective nations’ vehicle 

manufacturing safety laws, work 

together to research the causes and 

potential means of addressing deaths 

and injuries associated with motor 

vehicle crashes. As a result of the 

similar statutory schemes and the longstanding cooperative relationship 

between the two regulatory agencies, the 

FMVSS and CMVSS are similar in 

almost all substantive respects. 

In response to ATA’s comment 

concerning determination of FMVSS 

compliance of a vehicle manufactured 

in multiple stages, § 567.4 of NHTSA’s 

regulations describes the manufacturer’s 

responsibility for compliance labeling of 

the vehicle. Section 567.5 addresses the 

requirements for manufacturers of 

vehicles manufactured in two or more 

stages. These regulations were 

unaffected by NHTSA’s and FMCSA’s 

proposals. 

In response to ATA’s question on 

procedures for inspecting trailers 

entering the United States by rail (such 

as in trailer-on-flatcar service) or by ship 

(such as in intermodal containers), these 

trailers are subject to inspection by 

FMCSA or its State partners when 

operated on the highways. Trailers 

operating in the United States must 

meet applicable FMCSA regulations. 

Trailer inspections are performed by 

Federal and State enforcement officials 

using the North American Standard 

Inspection procedures required for all 

roadside CMV and driver inspections. 

Nonconforming trailers would be 

handled in the same way as other 

vehicle safety violations. 

Canada’s concerns about performance 

of inspections at border crossing areas 

50276 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

1Section 9102 of the Truck and Bus Safety and 

Regulatory Reform Act of 1988 (title IX, subtitle B 

of the Anti-Drug Abuse Act of 1988, Public Law 

100–690, 102 Stat. 4181, 4528) required the 

Secretary to exempt certain foreign motor carriers 

from part 393 of the FMCSRs, for a period of one 

year beginning on November 18, 1988. The Federal 

Highway Administration (FHWA), then the DOT 

agency responsible for motor carrier safety, 

addressed the requirements of the Act by 

publishing a final rule and request for comments on 

March 24, 1989 (54 FR 12200). In a report to 

Congress required under this legislation, FHWA 

recommended the part 393 exemption created by 

the Act be allowed to lapse, with the exception of 

a requirement for front-wheel brakes, and that 

Mexico-domiciled motor carriers operating in the 

border commercial zones be given until January 1, 

1991, to comply with that standard. FHWA 

published a final rule on May 17, 1994 (59 FR 

25572) requiring Mexico-domiciled CMVs operated 

in the United States to be equipped with brakes 

acting on all wheels.

are moot, in light of withdrawal of the 

NPRM. Inspections at the U.S.-Canada 

border will be conducted, as at present, 

under the North American Standard 

Inspection procedure. 

In response to Advocates’ comment, 

all CMVs, as defined in 49 CFR 390.5 

and operated in interstate commerce, 

are subject to the FMCSRs. The coding 

of the VIN, which must appear clearly 

and indelibly on all vehicles, includes 

a character indicating the model year. 

Table VI of 49 CFR Part 565 provides 

those codes for the years 1980 through 

2013 (49 U.S.C. 30112 does not apply to 

vehicles over 25 years old). Given the 

full VIN code, the enforcement official 

can determine more precise 

manufacturing data, including the 

specific configurations of components 

and accessories used on a particular 

vehicle. 

Phase-In Period 

Greyhound strongly opposed the 

proposed 2-year phased-in compliance 

period for certain Mexico-domiciled 

carriers, contending bus manufacturers 

in Mexico were advised some years ago 

that vehicles operating in the United 

States must comply with the FMVSSs. 

ATU and TTD supported Greyhound’s 

position. Advocates and Public Citizen 

also expressed strong opposition to the 

phased-in compliance period, believing 

it conflicted with the requirements of 

the Vehicle Safety Act. Public Citizen 

pointed to a list of FMVSSs with which 

CMVs must comply, including antilock 

brakes, rear impact guards, and brake 

slack adjusters. Advocates contended 

phased-in compliance ‘‘would create a 

two-tiered safety regime for motor 

carriers * * * [and] provides a strong 

incentive for foreign motor carriers to 

operate equipment for up to two years 

without conforming to the FMVSS.’’

AIA asserted the proposal for a phasein period is not dictated or envisioned 

under international law. CHP also 

opposed the phased-in compliance 

period. 

IBT asserted the border must remain 

closed until the FMCSA and NHTSA 

rulemakings are completed, and 

recommended the phase-in period for 

carriers already operating in the United 

States (U.S. and Canadian motor carriers 

as well as Mexican carriers currently 

operating beyond the border zones) be 

reduced to 12 months. IBT also 

recommended FMCSA clarify the rule 

text to prohibit carriers currently 

operating within the border commercial 

zones from taking advantage of the 

phase-in period if they applied to 

operate beyond the border zones.

FMCSA Response: Today’s 

withdrawal of the NPRM renders moot 

the concept of a phase-in period. 

Mexico-based motor carriers with 

current authority to operate in the 

United States have long been required 1

to comply with all applicable FMCSRs. 

Moreover, these vehicles are subject to, 

and many have undergone, roadside 

inspections while operating in the 

United States. The agency’s NAFTArelated rules concerning applications for 

operating authority and safety 

monitoring require all Mexicodomiciled vehicles operating beyond 

the border commercial zones to display 

at all times a current and valid 

inspection decal for a period of 18 

months after a carrier receives 

provisional operating authority and an 

additional 3 years after the carrier 

receives permanent authority. See 49 

CFR 365.511 and 385.103. The 

inspection decal demonstrates the 

vehicle’s compliance with FMVSSs 

cross-referenced in the FMCSRs, 

including all of the FMVSSs to which 

Public Citizen refers. Furthermore, the 

FMCSRs require motor carriers to 

maintain this safety equipment on their 

vehicles.

The roadside inspection procedure is 

the same for all CMVs operated in the 

United States, regardless of the motor 

carrier’s country of domicile. In 

addition, as described above under 

Safety of Vehicles Manufactured for the 

Mexican Market (and in the FMCSA 

policy memorandum discussed there 

and in the Background section), if 

FMCSA or State inspectors determine 

that any Mexico-domiciled CMVs lack 

the proper certification, we may use this 

information to suspend or revoke the 

carrier’s operating authority or 

certificate of registration for making a 

false certification or issue appropriate 

penalties for the falsification. 

As also described above in our 

discussion of the safety of Mexicodomiciled vehicles, 49 CFR 365.507(c) 

requires Mexico-domiciled motor 

carriers to pass an FMCSA pre-authority 

safety audit before they are granted 

provisional authority to operate in the 

United States beyond the border 

commercial zones. The pre-authority 

audit will include inspection of 

available vehicles that have not received 

the necessary inspection decal. This 

inspection will include checking 

compliance with part 393 of the 

FMCSRs and the FMVSSs they crossreference. For vehicles lacking a 

certification label, it has been 

determined that enforcement officials 

could, as necessary, refer to the VIN in 

various locations on the vehicle. The 

VIN will assist inspectors in identifying 

the vehicle model year and country of 

manufacture to determine compliance 

with the FMVSS or CMVSS. If FMCSA 

determines the carrier, after having 

certified all its vehicles as compliant, 

plans to operate vehicles not complying 

with those motor vehicle safety 

standards in effect on the date of 

manufacture, we may use this 

information to deny operating authority 

to the carrier. 

Because Mexico-domiciled motor 

carriers seeking new operating authority 

are required to certify on the application 

form that they operate only vehicles 

manufactured or retrofitted to be in 

compliance with the FMVSSs, these 

carriers should refrain from submitting 

applications for operating authority 

until they are able to ensure all vehicles 

to be operated in the United States are 

in compliance with the FMVSSs in 

effect on or after their date of 

manufacture. This requirement will be 

vigorously enforced, consistent with the 

agency’s policy memorandum discussed 

previously. 

FMCSA’s withdrawal of its NPRM 

concerning certification labels does not 

relieve motor carriers of the 

responsibility to comply with all 

applicable FMCSRs, including those 

that cross-reference the FMVSSs. The 

FMCSRs apply equally to all motor 

carriers operating CMVs in interstate 

commerce in the United States. Canadaand Mexico-domiciled motor carriers 

must comply with the same safety 

regulations as U.S. carriers. 

Out-of-Service Violations 

TMA questioned whether FMCSA 

would place a vehicle out of service 

solely because it lacks an FMVSS 

certification label, since FMCSA did not 

explicitly include such a statement in 

its NPRM. Manitoba likewise was 

concerned CMVs could be impounded, 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50277

2 950 Pennsylvania Avenue, NW., Mail Code 

NYAV, Washington, DC 20530. Information is also 

available at http://www.usdoj.gov/crt/drssec.htm.

seized, or placed out of service for the 

absence of a certification label. 

Advocates expressed a different view, 

contending without a certification label, 

‘‘there can be no presumption of 

affirmative compliance with the 

certification requirement * * * [This is] 

evidence that the vehicle was not 

properly certified and inspectors should 

place the vehicle out of service.’’

In supplementary comments, CVSA 

stated a label does not, by itself, provide 

evidence of the vehicle’s safety. CVSA 

considered it impractical to place a 

vehicle out of service solely because it 

lacks a certification label. 

FMCSA Response: Since we are 

withdrawing the proposed certification 

label requirement, this issue is now 

moot. However, we addressed this 

subject in the preamble to the NPRM (67 

FR 12782, at 12784, footnote 4), stating 

failure to have a certification label 

would not result in a vehicle’s being 

placed out of service in the absence of 

vehicle defects meeting existing out-ofservice criteria. The preamble to the 

NHTSA proposed policy statement (67 

FR 12790, at 12792) also addressed this 

issue. 

Other Vehicle Laws and Regulations 

Greyhound urged FMCSA to 

coordinate with the Federal Transit 

Administration (FTA) and the Office of 

the Secretary of Transportation to 

ensure fixed-route service operations 

comply with the requirements of the 

Americans with Disabilities Act (ADA). 

(According to 49 CFR Part 37, Subpart 

H, all buses acquired for fixed-route 

service must be equipped with a 

wheelchair lift. Until 100 percent of the 

fleet is equipped, operators must 

provide wheelchair lift service on 48 

hours’ notice.)

Public Citizen recommended FMCSA 

issue embossed or bolted-on CMV 

certification markings to aid Federal and 

State enforcement officials in 

determining the legal status of each 

vehicle, and that border-commercialzone-only trucks be ‘‘visually 

distinguishable’’ from those allowed to 

operate beyond the border zones. 

FMCSA Response: In response to 

Greyhound’s comment, DOT has a longstanding interpretation that Canada- or 

Mexico-based motor carriers are subject 

to ADA requirements if they pick up 

passengers in the United States. If a 

Mexico-based charter or tour operator 

boarded passengers in Mexico, drove 

them to a point in the United States, and 

then returned the passengers to Mexico 

without picking up anyone in the 

United States, the ADA requirements 

would not apply. However, the ADA 

requirements would apply if the 

Mexico-based tour operator boarded 

passengers in the United States, 

transported them to Mexico, and 

returned them to the United States. 

Likewise, if a Mexico-based fixed-route 

operation between points in Mexico and 

the United States picked up passengers 

at any point in the United States, ADA 

rules would apply. 

If a passenger has a concern about the 

manner in which a provider of interstate 

highway passenger transportation 

complies with the ADA, he or she 

should contact the U.S. Department of 

Justice (Justice), Civil Rights Division, 

Disability Rights Section.2 FMCSA will 

coordinate with Justice to ensure the 

concern is addressed. FTA’s jurisdiction 

concerning ADA compliance extends 

only to its public-agency grantees.

With regard to Public Citizen’s 

comment, CMVs operated by Mexicodomiciled motor carriers are issued a 

USDOT number with a suffix indicating 

whether they are authorized to operate 

within or beyond the border commercial 

zones. By regulation, these unique 

USDOT numbers are prominently 

displayed on both sides of the CMV. 

FMCSA Decision 

After review and analysis of the 

public comments discussed in the 

preceding section, and in consultation 

with NHTSA, FMCSA determined it can 

effectively ensure motor carriers’

compliance with applicable FMVSSs 

through continued vigorous 

enforcement of the FMCSRs, coupled 

with measures detailed in our 

enforcement policy memorandum 

regarding Mexico-domiciled carriers 

and vehicles. These new enforcement 

measures will begin immediately. We 

will compile data regarding Mexicodomiciled vehicles falsely certified as 

FMVSS compliant on the motor carrier’s 

application for operating authority and, 

when appropriate, take necessary action 

as described in the policy 

memorandum. 

This approach will help ensure the 

safety of Mexico-domiciled CMVs in 

real-world, operational settings while 

eliminating the potential drawbacks 

associated with requiring commercial 

motor vehicles to display an FMVSS 

certification label, as identified by many 

of the commenters to the NPRM. 

We again emphasize all motor carriers 

operating in the United States must 

comply with all applicable laws and 

regulations, including all of the FMCSRs 

as well as those that cross-reference 

particular FMVSSs. Through our crossreferences to FMVSSs, we require motor 

carriers to ensure their CMVs are 

equipped with specific safety devices 

and systems required by NHTSA on 

newly manufactured vehicles, and to 

maintain their vehicles to ensure 

continued safe performance. The 

roadside inspection program will ensure 

this is the case to the greatest extent 

practicable. 

In view of the foregoing, the NPRM 

concerning certification of compliance 

with the Federal Motor Vehicle Safety 

Standards is withdrawn.

Issued on: August 19, 2005. 

Annette M. Sandberg, 

Administrator.

[FR Doc. 05–16967 Filed 8–25–05; 8:45 am] 

BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Parts 567, 576 and 591 

[Docket No. NHTSA–2005–22197] 

RIN 2127–AI59, RIN 2127–AI60, RIN 2127–

AI64 

Retroactive Certification of 

Commercial Motor Vehicles by Motor 

Vehicle Manufacturers

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT.

ACTION: Notice of withdrawal of 

proposed rulemakings and policy 

statement. 

SUMMARY: This document completes 

NHTSA’s consideration of its 

responsibilities to help implement the 

obligations of the United States under 

the North American Free Trade 

Agreement. The agency had proposed 

regulations to permit retroactive 

certification of foreign domiciled 

vehicles that, while built in compliance 

with U.S. standards applicable at the 

time of manufacture, had not been 

labelled as such. At the same time, the 

Federal Motor Carrier Safety 

Administration had proposed to require 

all commercial motor vehicles operating 

in the U.S. to have labels certifying 

compliance with the Federal motor 

vehicle safety standards (FMVSS). 

After reviewing the comments on the 

NHTSA and FMCSA proposals, the 

Department has decided on a more 

effective and less cumbersome approach 

to ensuring that commercial motor 

vehicles were built to the FMVSS (or the 

very similar Canadian motor vehicle 

safety standards) and operate safely in 

the United States.