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. 

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

FMCSA requires Mexican-domiciled 

carriers applying to operate in the 

United States to certify in their 

applications that their vehicles were 

manufactured or retrofitted in 

compliance with the FMVSSs 

applicable at the time they were built, 

and will confirm that certification 

during the pre-authority safety audit 

and subsequent inspections. In addition, 

enforcement through the Federal Motor 

Carrier Safety Regulations focuses on 

real world, operational safety and 

incorporates the various FMVSS 

applicable through the useful life of the 

vehicle. 

FMCSA will not require vehicles to 

have labels certifying their compliance 

with the standards in effect when they 

were built, and NHTSA is not 

proceeding with a retroactive 

certification approach or the related 

proposal for a new recordkeeping and 

retention rule. We have also decided 

against placing a definition of the term 

‘‘import’’ in the Code of Federal 

Regulations. After considering the 

comments, we have concluded that 

creating a new regulation to define the 

term serves no regulatory function and 

is unnecessary for the promotion of 

motor vehicle safety.

FOR FURTHER INFORMATION CONTACT: For 

technical issues, you may call Julie 

Abraham, Director of the NHTSA 

International Policy, Fuel Economy and 

Consumer Program, at 202–366–0846. 

For legal issues, you may call Edward 

Glancy of the NHTSA Office of Chief 

Counsel, at 202–366–2992. 

You may send mail to both of these 

officials at the National Highway Traffic 

Safety Administration, 400 Seventh St., 

SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Background 

A. U.S. Moratorium on Operating 

Authority for Mexican-domiciled Motor 

Carriers 

B. NAFTA–U.S. Commitments and the 

Moratorium 

C. NAFTA-Related Activities by the 

Department of Transportation 

II. Summary of Comments 

III. NHTSA Analysis of the Differences 

Between the FMVSSs and the CMVSSs 

IV. Impact of a Certification Requirement on 

Canadian- and Mexican-domiciled 

Commercial Motor Carriers 

A. Federal Motor Carrier Safety 

Regulations 

B. Canadian-domiciled Commercial Motor 

Vehicles 

1. Volume of the U.S.-Canadian Crossborder Trade 

2. Impact of the Proposed Rules on 

Canadian Motor Carriers 

3. Safety Record of Commercial Motor 

Vehicles Selected for Inspection 

B. Mexican-domiciled Commercial Motor 

Vehicles 

V. FMCSA’s Enforcement Policy 

VI. NHTSA’s Interpretation of the Import 

Prohibition in the Vehicle Safety Act 

A. NHTSA’s 1975 Interpretation 

B. Possible Alternative Interpretations of 

the Import Prohibition 

1. Import—Illegal Goods Definition 

2. Import—Definition Used in Determining 

Whether an Item Brought into the U.S. is 

Subject to Tariff 

3. Import—Use of Tariff Definition in nonTariff Context 

C. Factors not Considered in the 1975 

Interpretation or NPRM 

1. U.S. Customs Regulations in Effect in 

1966 

2. Treatment of Canadian-domiciled 

Commercial Motor Vehicles 

3. FY 2002 DOT Appropriations Act 

Appendix

I. Background 

A. U.S. Moratorium on Operating 

Authority for Mexican-Domiciled Motor 

Carriers 

Since 1982, a statutory moratorium on 

the issuance of operating authority to 

Mexican-domiciled motor carriers has, 

with a few exceptions, limited the 

operations of such carriers to 

municipalities and commercial zones 

along the United States-Mexico border 

(‘‘border zone’’). Bus Regulatory Reform 

Act of 1982, Public Law No. 97–261, 96 

Stat. 1102 (1982). The nearly blanket 

moratorium, which initially applied to 

both Mexican- and Canadian-domiciled 

motor carriers, was lifted against Canada 

pursuant to a memorandum from 

President Reagan to the United States 

Trade Representative published in the 

Federal Register. 47 FR 54053; 

December 1, 1982. 

The memorandum was issued after 

the United States and Canada agreed, 

via an exchange of letters, to lift certain 

trade restrictions that were prohibiting 

the free flow of goods across the U.S.-

Canadian border. Safety of the Canadian 

commercial motor vehicles was not 

identified as an area of concern in these 

letters. 

B. NAFTA–U.S. Commitments and the 

Moratorium

Groundwork for lifting the 

moratorium as to Mexican-domiciled 

commercial motor vehicles was laid on 

December 17, 1992, when the United 

States, Canada and Mexico signed the 

North American Free Trade Agreement 

(NAFTA or Agreement). Following 

approval by Congress, the Agreement 

entered into force on January 1, 1994. 

NAFTA establishes a free trade area, 

and its primary objectives are the 

promotion of free trade and investment 

through the elimination of trade barriers 

and the facilitation of cross-border 

movement of goods and services. 

Annex I of NAFTA called for 

liberalization of access for Mexicandomiciled motor carriers on a phased 

schedule. Annex I: Reservations for 

Existing Measures and Liberalization 

Commitments, Schedule of the United 

States. Pursuant to this schedule, 

Mexican-domiciled charter and tour bus 

operations were to be permitted beyond 

the border zone on January 1, 1994. 

Truck operations were to have been 

permitted in the four United States 

border states in December 1995, and 

throughout the United States on January 

1, 2000; scheduled bus operations were 

to have been permitted throughout the 

United States on January 1, 1997. 

However, the United States postponed 

implementation with respect to 

Mexican-domiciled truck and scheduled 

bus service due to concerns about 

safety, continuing its blanket 

moratorium on processing applications 

by these Mexican-domiciled motor 

carriers for authority to operate in the 

United States outside the border zone. 

On February 6, 2001, a NAFTA 

dispute resolution panel ruled that the 

blanket moratorium violated the United 

States’ commitments under NAFTA. 

NAFTA Panel Established Pursuant to 

Chapter Twenty in the Matter of CrossBorder Trucking Services Final Report 

(Feb. 6, 2001), 40 I.L.M. 772. 

C. NAFTA-Related Actions by the 

Department of Transportation 

The Department of Transportation is 

now preparing for the implementation 

of the NAFTA provisions concerning 

Mexican-domiciled motor carriers. The 

Department is adopting and 

implementing appropriate and effective 

safety measures as the United States 

takes the steps necessary to comply with 

its obligations under NAFTA regarding 

the access of Mexican-domiciled motor 

carriers engaged in interstate commerce 

to the United States. 

As part of that effort, NHTSA has 

been examining the question of what 

role it should play under a statute 

originally known as the National Traffic 

and Motor Vehicle Safety Act. That 

statute has been codified at 49 U.S.C. 

30101, et seq. (In the interest of 

simplicity, we will refer to that statute 

as the Vehicle Safety Act.) The purpose 

of the Vehicle Safety Act is to reduce 

the number of crashes and deaths and 

injuries resulting from crashes. 

Pursuant to the Vehicle Safety Act, 

NHTSA issues Federal motor vehicle 

safety standards (FMVSSs) that apply to 

new motor vehicles that are 

manufactured for sale in the United 

States. The FMVSSs also apply, subject 

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

1See letter dated May 9, 1975 from NHTSA 

Administrator James B. Gregory to M. C. Carruth, 

Docket No. NHTSA–02–11593.

2A ‘‘commercial vehicle’’ is any self-propelled or 

towed motor vehicle used on a highway in 

interstate commerce to transport passengers or 

property when the vehicle: (1) Has a gross vehicle 

weight rating (GVWR) or gross combination weight 

rating (GCWR)—or a gross vehicle weight (GVW) or 

gross combination weight (GCW)—of 4,536 

kilograms (10,001 pounds) or more, whichever is 

greater; or (2) is designed or used to transport more 

than 8 passengers, including the driver, for 

compensation; or (3) is designed or used to 

transport more than 15 passengers, including the 

driver, whether or not it is used to transport 

passengers for compensation; or (4) is used in 

transporting material found by the Secretary of 

Transportation to be hazardous under 49 U.S.C. 

5103 and transported in a quantity requiring 

placarding under regulations prescribed by the 

Secretary under 49 CFR, Subtitle B, Chapter I, 

Subchapter C. See 49 CFR 390.5.

to certain exemptions, to new or used 

motor vehicles imported into the United 

States. The Vehicle Safety Act requires 

manufacturers to certify that their 

vehicles, at the time of manufacture, 

comply with all applicable safety 

standards. 49 U.S.C. 30112. Each 

manufacturer must give evidence of this 

certification by affixing to its vehicles a 

permanent label stating that the 

manufacturer certifies that the vehicles 

comply with all applicable safety 

standards. 49 U.S.C. 30115. 

In 1975, NHTSA interpreted this 

provision of section 30112 as applying 

to all vehicles entering the United 

States. In a letter from the NHTSA 

Administrator to the Canadian Trucking 

Association, the agency stated that 

Canadian commercial vehicles 

transporting cargo into and within the 

United States are imports within the 

context of 49 U.S.C. 30112 and must be 

certified.1 Although the 1975 letter did 

not address the issue of Mexicodomiciled commercial motor vehicles, 

its rationale applied equally to those 

vehicles.

Following the decision of the NAFTA 

panel in February 2001, NHTSA 

reviewed its 1975 interpretation. On 

March 19, 2002, we proposed to define 

the term ‘‘import’’ in the Code of 

Federal Regulations in a manner 

consistent with the 1975 interpretation 

and sought comment on that 

interpretation of that term (67 FR 12806, 

Docket No. NHTSA–02–11593). 

FMCSA also issued an NPRM on that 

date, proposing to require that all 

commercial motor vehicles operating in 

interstate commerce in the United States 

have labels certifying their compliance 

with the FMVSSs in effect when they 

were built (67 FR 12782, Docket No. 

FMCSA 01–10886). FMCSA is the 

agency within the Department of 

Transportation that is responsible for 

oversight of commercial motor carriers 

engaged in interstate commerce. Its 

regulations address both the commercial 

motor vehicles 2 (generally large trucks 

or passenger-carrying vehicles) operated 

in interstate commerce and drivers of 

those vehicles. The regulations also 

require commercial motor carriers, i.e., 

those businesses that engage in the 

transport of cargo or passengers, to meet 

specified operating requirements.

In conjunction with those two 

proposals, NHTSA issued a request for 

comments on a draft policy statement 

providing that a vehicle manufacturer 

may, if it has sufficient basis for doing 

so, retroactively certify that a motor 

vehicle complied with all applicable 

FMVSSs in effect at the time of 

manufacture and affix a label to that 

effect (March 19, 2002, 67 FR 12790, 

Docket No. NHTSA 02–11594). To 

facilitate compliance further, FMCSA 

proposed a short-term exception from 

its proposed requirement, allowing a 

two-year grace period for carriers with 

existing operating authority to have 

their vehicles retroactively certified. 

New operators would have had to 

comply with the FMCSA requirement 

immediately. In addition, NHTSA 

issued an NPRM proposing 

recordkeeping requirements for 

manufacturers that retroactively certify 

their vehicles (March 19, 2002, 67 FR 

12800, Docket No. NHTSA 02–11592). 

The comment period for all four 

notices ended on May 20, 2002. 

After careful consideration of the 

comments (which are discussed below) 

and also consistent with the actions 

being taken by FMCSA, we have 

decided to withdraw the three 

documents. The Department has 

developed a more effective and less 

cumbersome approach to ensure that 

commercial motor vehicles operating in 

the United States were originally built 

to the FMVSSs (or, as discussed below, 

the very similar Canadian motor vehicle 

safety standards (CMVSSs)) applicable 

at the time of their manufacture and 

operate safely in the U.S. 

FMCSA, among other things, requires 

Mexican-domiciled carriers applying to 

operate in the United States to certify in 

their application that their vehicles 

were manufactured or retrofitted in 

compliance with the FMVSSs 

applicable at the time they were built 

and will confirm that certification 

during the pre-authority safety audit 

and subsequent inspections.

FMCSA’s enforcement program will 

ensure that commercial motor vehicles 

operating in the United States comply 

with all of the operating and 

maintenance regulations necessary for 

real world safety. With only a few 

differences, the Canadian motor vehicle 

safety standards are identical to the U.S. 

manufacturing performance standards 

(the FMVSS), and FMCSA’s operating 

regulations incorporate the FMVSS 

critical to continued safe operation. As 

necessary, FMCSA’s enforcement 

program may use VINs and other 

available information to check that 

commercial motor vehicles operating in 

the U.S. were originally built to the 

FMVSS or CMVSS applicable at the 

time of their manufacture. 

FMCSA will not require vehicles to 

have labels certifying their compliance 

with the standards in effect when they 

were built, and is withdrawing its 

proposal on that subject. NHTSA is not 

proceeding with a retroactive 

certification approach or the related 

proposal for a new recordkeeping and 

retention rule. We have also decided 

against placing a definition of the term 

‘‘import’’ in the Code of Federal 

Regulations. After considering the 

comments, we have concluded that 

creating a new regulation to define the 

term serves no regulatory function and 

is unnecessary for the promotion of 

motor vehicle safety. 

II. Summary of Comments 

A total of 79 comments, many of them 

duplicative, were received in the docket 

for the four rulemakings. Most of the 

comments addressed the FMCSA notice 

proposing that all commercial motor 

vehicles operating in the U.S. be 

certified and be labeled as certified. 

However, several of the commenters 

also addressed the implications of the 

proposed definition of the word 

‘‘import’’ and its impact on the existing 

open U.S.-Canadian border and motor 

vehicle safety. Only a few commenters 

offered an opinion as to the validity of 

the interpretation on which the 

proposed definition of ‘‘import’’ was 

based. 

Various trade organizations 

representing both motor carriers and 

truck manufacturers submitted 

comments generally opposed to the 

group of rulemakings. Representatives 

of the transit industry, labor 

organizations, vehicle insurers, and 

consumer groups filed comments that 

were generally supportive of the NPRM 

proposing to define ‘‘import,’’ but 

generally not supportive of the draft 

policy statement on retroactive 

certification or the proposed 

recordkeeping requirements. They were 

particularly concerned about the 

potential for fraud and abuse if 

retroactive certification were permitted. 

They were also opposed to the proposed 

grace period in the FMCSA rulemaking. 

50280 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

Additionally, the Canadian 

government, as well as two of its 

provinces, Manitoba, and 

Newfoundland and Labrador, filed 

submissions. While the Canadian 

authorities noted that they understood 

and supported the right of the U.S. to 

ensure the safety of its roads, they said 

that inspection and crash data showed 

that Canadian commercial vehicles are 

at least as safe as U.S. commercial 

vehicles. They argued that, in those 

circumstances, extending the 

certification requirements to the 

Canadian vehicles amounts to a 

technical trade barrier under the WTO 

and NAFTA. 

Canada emphasized the substantial 

similarity between the CMVSSs and the 

FMVSSs, as well as the similarity 

between their underlying statute and 

ours (both of which are over 30 years 

old). The CMVSSs are intentionally 

harmonized with the FMVSSs to the 

maximum extent possible. The 

exceptions are generally limited to 

labeling requirements (metric, both 

French and English) and those instances 

in which the Canadian environment is 

unique (mandatory daytime running 

lights because of long periods of twilight 

in many parts of the country). 

Industry representatives agreed with 

Canada’s assessment, noting that like 

the U.S., Canada has a long history of 

comprehensive and substantially similar 

safety standards that govern the 

manufacture of motor vehicles, 

including commercial trucks. They said 

that, in some instances, the Canadian 

standards are arguably more stringent 

than the U.S. standards. The Truck 

Manufacturers Association (TMA) stated 

that, from a safety perspective, the two 

major areas of difference between U.S. 

and Canadian heavy vehicles are the 

effective dates for anti-lock brake 

systems (ABS) and automatic brake 

adjusters. It argued, however, that this 

lag time is of no practical consequence 

in view of the requirement at 49 CFR 

393.55 of the Federal Motor Carrier 

Safety Regulations (FMCSRs) that all 

commercial motor vehicles operating in 

the U.S. be equipped with ABS and 

automatic brake adjusters that meet the 

requirements of FMVSS No. 105, 

Hydraulic and Electric Brake Systems, 

or FMVSS No. 121, Air Brake Systems. 

Canada also observed that the U.S. 

and Canada have engaged in mutual 

acceptance of safety rules related to 

commercial motor carriers (e.g., 

acceptance of commercial driver’s 

license qualifications, vehicle 

inspection standards) since 1982, when 

the moratorium on issuing operating 

authority to Canadian-domiciled motor 

carriers was lifted. This system of 

mutual recognition has proven effective 

in maximizing cross-border trade, while 

ensuring that each country’s legitimate 

safety concerns are sufficiently 

addressed. 

The American Trucking Associations 

(ATA) argued that NHTSA should not 

interpret ‘‘import’’ to include the 

entrance of foreign commercial motor 

vehicles engaged in the transport of 

goods in the cross-border trade. It 

argued that this interpretation is 

inconsistent with the U.S. Customs 

classification of such vehicles as 

‘‘instruments of international 

commerce,’’ instead of ‘‘imports.’’ The 

province of Newfoundland and 

Labrador argued that commercial 

vehicles that enter the U.S. for purpose 

of the carriage of goods or passengers 

should not be considered imports unless 

there is a change of ownership such that 

the vehicle can no longer be considered 

foreign-domiciled.

The Transportation Trades 

Department of the AFL-CIO (TTD), 

International Brotherhood of Teamsters 

(IBT), American Insurance Association 

(AIA), Public Citizen and Advocates for 

Highway and Auto Safety (Advocates) 

all believe NHTSA’s 1975 interpretation 

of the import prohibition should be 

applied today, that it is based on 

‘‘unequivocal’’ statutory language, and 

that it is needed to ensure the safety of 

our roadways. However, their comments 

and criticisms were limited to the 

impact of non-certified commercial 

motor vehicles coming into the United 

States from Mexico. 

AIA pointed out that the NAFTA 

panel decision specifically allows for 

U.S. safety agencies to impose measures 

that guarantee the safe operation of 

trucks in the U.S., even if those 

measures impose limitations or 

requirements on Mexican-domiciled 

motor carriers that are not imposed on 

U.S.- or Canadian-domiciled carriers. It 

also noted that a lack of sufficient 

guarantees of safety, as a general rule, 

makes a class of business less insurable 

or increases the cost of coverage. The 

IBT argued that the application of 

vehicle safety requirements to Mexican 

carriers is consistent with the policy 

expressed by Congress in the MurrayShelby legislation (section 350 of the 

2002 DOT Appropriations Act, Pub. L. 

107–87) regarding the importance of 

preventing unsafe commercial motor 

vehicles from entering the U.S. 

The Amalgamated Transit Union 

(ATU) and Greyhound, as well as AIA, 

argued that all commercial motor 

vehicles should be required to have a 

sticker or plate (i.e., a FMVSS 

certification label) before they are 

allowed to operate in the U.S., 

regardless of whether they have 

previously been allowed to operate in 

this country. They argued also that the 

grace period contemplated in the 

FMCSA proposal was inappropriate. 

Various commenters claimed that the 

vast majority of Mexican-manufactured 

buses did not comply with the FMVSSs 

when originally manufactured, and do 

not comply now (particularly as to 

brakes, fuel systems, windows, and 

emergency exits). They also said that it 

is apparent from the FMCSA/NHTSA 

notices, when considered together, that 

many thousands of Mexican carriers 

have been traveling into the U.S. for 

many years without conforming to the 

U.S. safety standards. They argued that 

non-compliant commercial motor 

vehicles present a special safety hazard 

on U.S. roads, and non-compliant motor 

coaches, in particular, are especially 

dangerous for both bus passengers and 

other highway users. They believe the 

requirement that all vehicles display a 

valid FMVSS certification label would 

rectify this problem. 

Advocates and AIA tentatively 

supported the concept of retroactive 

certification, although they expressed 

some concerns about the program, most 

notably the possibility of the issuance of 

mistaken, unsupported, or fraudulent 

certifications. They argued that the large 

population of ineligible Mexican 

vehicles would inevitably encourage the 

issuance of false certifications and the 

production of fraudulent labels. They 

also argued that the proposed policy 

statement does not provide sufficient 

safeguards to ensure that only those 

vehicles that, in fact, complied when 

originally manufactured (or are 

subsequently modified to achieve 

compliance) would actually be certified. 

Finally, they claimed that since 

Mexican manufacturers and carriers are 

unfamiliar with the FMVSSs, and there 

is no labeling requirement in Mexico, 

the only way to verify compliance of 

each Mexican-manufactured vehicle 

certified as conforming to the FMVSSs 

is to inspect each vehicle along with the 

documentation at the time of the preauthorization safety audit. Without this 

initial, threshold confirmation of 

conformity with the FMVSSs, they 

argued, Mexican-domiciled motor 

carriers might certify their vehicles 

without any demonstrable proof of 

conformity. 

III. NHTSA’s Analysis of the 

Differences Between the FMVSSs and 

the CMVSSs 

As noted by Canada in its comments, 

the FMVSSs and CMVSSs are issued 

under virtually identical statutes that 

were enacted over thirty years ago. The 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50281

two statutory schemes both require 

manufacturers to certify that their 

vehicles comply with all applicable 

safety standards in effect at the time of 

manufacture and employ similar 

enforcement schemes. Both sets of 

standards are performance based, based 

on research and data, and generally do 

not dictate a particular design, although 

they may have the effect of prohibiting 

certain designs. NHTSA and Transport 

Canada, the Canadian regulatory agency 

tasked with implementing and enforcing 

its vehicle safety act, work closely in 

researching the causes and potential 

means of addressing deaths and injuries 

related to motor vehicle crashes. 

In 1984, the Department of 

Transportation and Transport Canada 

signed Addendum 5, Traffic and Motor 

Vehicle Safety Research (Addendum 5), 

to the existing Memorandum of 

Understanding between Transport 

Canada and the United States 

Department of Transportation 

Concerning Research and Development 

Cooperation in Transportation (June 18, 

1970). Addendum 5 initially addressed 

cooperative research activities related to 

traffic safety research, crash avoidance 

research, crashworthiness research, and 

road safety data collection and analysis. 

The results of these research activities 

were often used to initiate rulemaking 

activities. In the 1996 version of 

Addendum 5, NHTSA and Transport 

Canada agreed to extend the cooperation 

agreement formally to the rulemaking 

activities of the United States and 

Canada. The two agencies also agreed to 

meet at least once a year to review the 

status of their respective rulemaking 

actions, alert the other to rules 

potentially of interest, and discuss nearterm rulemaking plans. In 2002, NHTSA 

and Transport Canada concluded a 

revision to Addendum 4, which 

renewed the cooperation agreement 

indefinitely in order to ensure 

continuation of collaborative activities 

between the two departments. A copy of 

Addendum 5, including all updated 

versions, has been placed in the docket. 

As a result of both the similar 

statutory schemes and the longstanding 

cooperative relationship between the 

two regulatory agencies, as well as the 

similarity in their physical 

environments and population, the 

FMVSSs and CMVSSs mirror each other 

in almost all substantive respects, 

especially as they apply to heavy trucks 

and buses. 

NHTSA has evaluated the differences 

between the FMVSSs and the CMVSSs 

that apply to heavy trucks and buses 

(over 4,536 kg (10,000 lb) GVWR). We 

shared our analysis with Transport 

Canada, which provided additional 

feedback. Tables 1 and 2 in the 

appendix to this document generally 

outline the similarities and differences 

between the two sets of standards. We 

believe the efforts of both agencies have 

identified all of the significant 

differences between the two sets of 

standards as they apply to these 

vehicles. 

As an initial matter, we note that this 

analysis is neither a tentative nor a final 

determination of functional 

equivalence. NHTSA has a formal 

process that allows for functional 

equivalence determinations with the 

consequence being a change in the 

standard that may be utilized by any 

manufacturer. Rather, today’s analysis 

recognizes the tremendous similarity 

between the respective standards. In 

most instances, no amendment would 

be needed. The regulatory requirements 

already mirror each other. In some 

instances, minor differences exist and a 

series of minor changes to the FMVSS 

would be required in order for us to 

determine that the respective standards 

are functionally equivalent. We have 

decided against such an approach. 

Rather, we believe that the manufacture 

or retrofitting of vehicles in compliance 

with either the FMVSS or CMVSS 

ensures sufficient adequate design 

integrity to meet the safety concerns 

posed by the operation of commercial 

motor vehicles on the nation’s highways 

as long as the vehicles also meet all 

FMCSRs.

Given the similarities between the 

two sets of standards and the existing 

manufacturer compliance practices, it is 

neither difficult nor impermissible for a 

commercial motor vehicle certified to 

the CMVSSs to meet the substantive 

requirements of the FMVSSs. We have 

identified 14 FMVSS/CMVSS pairs of 

standards that have differences. Most of 

these have only minor differences in 

performance values, with Canadian 

requirements that are at least as 

stringent as, and possibly stricter than, 

the corollary requirements in the 

FMVSSs. For example, one of the 

Canadian standards, CMVSS No. 301.1, 

has no U.S. counterpart, while another, 

CMVSS No. 301.2, has broader 

applicability than the corollary FMVSS 

Nos. 303 and 304. 

The differences between Canadian 

standards and other U.S. standards like 

FMVSS Nos. 101, 105, and 121 relate 

solely to information on the instrument 

panel. These are designed to relay 

specific information to the vehicle 

operator and may be based on the 

customs and practices of the respective 

countries. We believe these differences 

do not have any consequence so long as 

the vehicle operator is familiar with the 

vehicle. Indeed, NHTSA and Transport 

Canada are involved in a harmonization 

effort that would eliminate most of these 

differences. 

The remaining differences are not 

likely to pose safety problems. Portions 

of FMVSS No. 108 (reflective tape on 

trailers and allowance of European head 

lamps) and FMVSS Nos. 223 and 224 

(underride prevention) have no 

Canadian counterpart. However, 

according to the CTEA, all Canadian 

trailers entering the United States 

already meet the applicable underride 

requirements of FMVSS Nos. 223 and 

224 because of the underride 

requirements in the FMCSRs. Similarly, 

while CMVSS No. 108 allows singlecolored reflective tape on trailers, the 

Canadian trailers used in the crossborder trade meet the requirements of 

FMVSS No. 108, in part because of the 

requirement in the FMCSRs that they do 

so. Finally, the TMA polled its 

Canadian members and has determined 

that no Canadian truck manufacturers 

are using European headlamps, even 

though the standard allows them. 

Communications submitted by CTEA 

documenting these statements have 

been placed in the docket. 

As a result of our analysis, we have 

determined that allowing commercial 

motor vehicles certified to the Canadian 

motor vehicle safety standards rather 

than the U.S. motor vehicle safety 

standards to operate in the United States 

will have no negative safety 

consequences. Accordingly, requiring 

these vehicles to be certified twice, once 

to the CMVSSs and then secondarily to 

the FMVSSs, would impact U.S./Canada 

trade and impose requirements on the 

Canadian motor carriers, both in terms 

of cost and access to the U.S. market 

that cannot be justified. 

IV. Impact of a Certification 

Requirement on Canadian- and 

Mexican-Domiciled Commercial Motor 

Carriers 

A. Federal Motor Carrier Safety 

Regulations 

The condition of safety equipment 

and features on commercial motor 

vehicles is governed by 49 CFR Part 393, 

Parts and Accessories Necessary for Safe 

Operation. The Vehicle Safety Act, 49 

U.S.C. 30103(a), specifically requires the 

FMCSRs be fully consistent with the 

FMVSSs. The provision does not require 

FMCSA to adopt all applicable FMVSSs 

as FMCSRs. However, if the item of 

equipment is regulated by the FMCSRs, 

then they must do so in a manner 

consistent with the FMVSSs. Section 

30103(a) states:

50282 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

3CTA’s cost estimate was premised on the 

following assumptions: 

Each and every piece would have to be taken out 

of service for a period of time; returned to the 

manufacturer of deliverer to a registered importer; 

receive certification; and then returned to the 

vehicle fleet. Depending on the length of time 

required, the motor carrier may have to lease 

replacement equipment. Presumably manufacturers, 

and certainly registered importers, would charge a 

fee for service. 

CTA further argued that ‘‘since carriers do not 

segregate their fleet into ‘domestic’ and 

‘international’ equipment, from a practical 

standpoint, all equipment in fleets with crossboarder operations would fall under the proposed 

labeling requirements.’’

The Secretary of Transportation may not 

prescribe a safety regulation related to a 

motor vehicle subject to subchapter I of 

chapter 135 of this title [49 U.S.C. 13501 et 

seq.] that differs from a motor vehicle safety 

standard prescribed under this chapter [49 

U.S.C. §§ 30101 et seq.]. However, the 

Secretary may prescribe, for a motor vehicle 

operated by a carrier subject to subchapter I 

of chapter 135 [49 U.S.C. 13501 et seq.], a 

safety regulation that imposes a higher 

standard of performance after manufacture 

than that required by an applicable standard 

in effect at the time of manufacture.

Because of the cross-reference in the 

Vehicle Safety Act to 49 U.S.C. 13501, 

et seq., foreign-domiciled commercial 

motor vehicles engaged in interstate 

commerce are already subject to 

requirements based on most of the 

FMVSSs applicable to heavy trucks and 

buses. In most instances, the FMCSRs 

directly cross-reference the applicable 

portions of the FMVSSs that apply to 

the regulated vehicles. Further, the 

FMCSRs require that all motor carriers 

operating in the United States maintain 

much of the safety equipment and 

features that NHTSA requires vehicle 

manufacturers to install. 

In the case of many manufacturing 

standards, for example where a 

compliance symbol is placed on the 

piece of equipment, a visual inspection 

is sufficient to verify compliance. With 

respect to other manufacturing 

standards, most notably the braking 

standards, a roadside inspection cannot 

tell the inspector whether the safety 

equipment, as originally manufactured, 

was effective enough to have actually 

complied with the applicable FMVSS. 

In these instances, however, the 

operating standard itself is designed to 

ensure that the motor vehicle is 

currently operating in a safe condition. 

Indeed, many of these types of 

standards involve aspects of motor 

vehicle performance that do not remain 

constant over the life of the vehicle. 

Thus, some FMCSRs address the current 

operational safety of components which 

wear over the life and use of the vehicle, 

while others cross-reference FMVSSs to 

ensure that required equipment is in 

place and maintained. In this way, the 

FMVSSs and FMCSRs comprise a 

consistent and mutually-supportive set 

of regulations, as intended by Congress 

in the Vehicle Safety Act. 

B. Canadian-Domiciled Commercial 

Motor Vehicles 

1. Volume of the U.S.-Canadian CrossBorder Trade 

Canada and the U.S. have the largest 

bilateral trade relationship in the world, 

with the vast majority of goods exported 

from each country being carried via 

commercial motor vehicles (65% for 

Canada, 80% for U.S.). According to 

Canada, this trade generates 13 million 

truck trips across the U.S.-Canadian 

border annually, and represents more 

than 25% of the Canadian for-hire 

trucking revenues. 

Industry representatives have 

proffered similar figures. According to 

the Canadian Trucking Association 

(CTA), the total merchandise trade 

between the U.S. and Canada is valued 

at almost $600 billion (2001 dollars). 

Typically about 70%, by value, of that 

trade is carried by truck, leading to more 

than 13 million truck trips across the 

U.S.-Canadian border. Trade by truck is 

crucial to maintaining shippers’ just-intime delivery schedules. CTA estimates 

that approximately 70,000 (out of 

225,000) Canadian truck drivers enter 

the U.S. each year. 

Canada contended that the proposed 

rules would make it impossible for 

many Canadian motor carriers to 

operate in the U.S. The small fleets and 

owner-operators (more than 50% of the 

Canadian carriers) would be the most 

substantially impacted. 

2. Impact of the Proposed Rules on 

Canadian Motor Carriers 

The Canadian fleets are not segregated 

into ‘‘domestic’’ or ‘‘international’’

equipment. Accordingly, the CTA 

argued that, from a practical standpoint, 

all Canadian vehicles would have to be 

retroactively certified and fitted with a 

FMVSS label in addition to the existing 

CMVSS label if the proposed labeling 

requirement were adopted. We agree 

that, if true, that would constitute a 

significant burden on the Canadian 

fleet. 

TMA claimed that the vast majority of 

carriers that would seek retroactive 

certification under the proposed policy 

statement would be domiciled in 

Canada rather than Mexico. It noted that 

in 2000 there were approximately 

700,000 heavy commercial motor 

vehicles (greater than 10,000 lb GVWR) 

registered in Canada. Since 87% of 

Canada’s merchandise trade is with the 

U.S. and most of this merchandise is 

transported to the U.S. in commercial 

motor vehicles, a large portion of these 

700,000 vehicles would need to be 

retroactively certified. According to 

TMA, retroactive certification for such a 

large number of vehicles would be both 

costly and time-consuming. Since these 

vehicles are already certified to the 

substantially similar CMVSSs and are 

already operating in the U.S. without a 

U.S. certification label, TMA argued that 

the increase in safety benefits that result 

from retroactive certification would be 

minimal at best. 

TMA also noted that NHTSA, in 

proposing to place a definition of the 

term ‘‘import’’ in the CFR, did not offer 

any data indicating that the Canadian 

vehicles currently operating in the U.S. 

are unsafe. Accordingly, they suggested 

there is no safety need for the proposed 

regulation. Additionally, TMA and CTA 

argued that the most important 

influence on in-use vehicle safety is the 

level and quality of maintenance, driver 

performance, and the environment in 

which the vehicle is operated. The 

FMVSSs do not address the condition of 

a vehicle after it has been sold and put 

into service. 

Canada also argued that complying 

with the certification requirements afterthe-fact would be very difficult and 

costly, and, in many instances, 

impossible. Because the useful life of a 

commercial motor vehicle (particularly 

trailers) is well in excess of the 

Canadian 5-year record retention 

requirement, retroactive certification 

would, in many cases, be impossible. 

Additionally, many manufacturers have 

indicated to the Canadian government 

that they would not retroactively certify 

their vehicles. To the extent they were 

willing and able to retrofit these 

vehicles, they would pass the cost of 

certification onto the carrier. According 

to CTA, the cost of retroactive 

certification is impossible to determine. 

However, assuming the cost would be 

$1,000 per vehicle,3 Canadian motor 

carriers would have to spend at least 

$250 million to comply with a FMVSS 

label requirement and would lose the 

valuable use of their vehicles while they 

are being certified.

3. Safety Record of Commercial Motor 

Vehicles Selected for Inspection 

According to data collected by the 

FMCSA, concerning the out-of-service 

rates of commercial motor vehicles 

selected for roadside inspection in this 

country, Canadian commercial motor 

vehicles appear to have a lower out-ofservice rate than do U.S.-domiciled 

commercial motor vehicles. These data 

are shown in the table below. It is 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50283

4The rest are either produced by Scania or are 

built in two or more stages, with the chassis 

manufactured by a U.S. manufacturer and a 

Continued

important to note that the roadside 

inspection data are not statistically 

representative of all commercial motor 

vehicles, since States typically select 

commercial motor vehicles for 

inspection based upon the operating 

motor carrier’s safety record, as well as 

indicators of potential safety problems 

noted when a vehicle enters an 

inspection facility. Thus, FMCSA and 

State inspectors focus their inspections 

on vehicles thought to have an above 

average likelihood of having safety 

problems. Further, the number of 

inspections performed on Mexicodomiciled commercial motor vehicles, 

particularly long-haul commercial 

motor vehicles, is a minute fraction of 

the total. Virtually all of the ‘‘Mexico—

all’’ inspections were performed on 

short haul drayage operations during 

which Mexican-domiciled vehicles 

enter the U.S. not farther than the 

commercial zone along the border. 

Those vehicles are typically older than 

the Mexican-domiciled vehicles used in 

long haul operations.

OUT-OF-SERVICE RATES BY COUNTRY OF DOMICILE

Total number 

of vehicle

inspections 

Vehicle

inspections 

with a 

FMCSR

violation 

Vehicle

inspections 

with an outof-service 

violation 

Percentage 

of total vehicle inspections with an 

out-of-service 

violation 

FY 1999: 

All inspected vehicles ....................................................................................... 1,387,236 935,453 316,546 22.8 

Canada ............................................................................................................. 33,655 18,496 4,766 14.2 

Mexico—long haul ............................................................................................ 19,695 17,362 8,165 41.5 

Mexico—all ....................................................................................................... 38,236 33,544 15,294 40.0 

U.S. ................................................................................................................... 1,315,345 883,413 296,486 22.5 

FY 2000: 

All inspected vehicles ....................................................................................... 1,488,023 1,002,187 329,659 22.2 

Canada ............................................................................................................. 38,207 21,668 5,407 14.2 

Mexico—long haul ............................................................................................ 23,275 19,900 8,948 38.4 

Mexico—all ....................................................................................................... 51,202 43,233 18,772 36.7 

U.S. ................................................................................................................... 1,398,614 937,286 305,480 21.8 

FY 2001: 

All inspected vehicles ....................................................................................... 1,610,780 1,114,754 356,191 22.1 

Canada ............................................................................................................. 40,276 23,474 5,538 13.8 

Mexico—long haul ............................................................................................ 25,175 21,569 9,046 35.9 

Mexico—all ....................................................................................................... 64,892 54,806 21,901 33.7 

U.S. ................................................................................................................... 1,505,612 1,036,474 328,752 21.8 

FY 2002: 

All inspected vehicles ....................................................................................... 1,712,628 1,158,576 356,091 20.8 

Canada ............................................................................................................. 62,344 31,365 6,883 11.0 

Mexico—long haul ............................................................................................ 27,702 23,484 8,557 30.9 

Mexico—all ....................................................................................................... 89,566 73,750 24,525 27.4 

U.S. ................................................................................................................... 1,560,718 1,053,461 324,683 20.8 

FY 2003: 

All inspected vehicles ....................................................................................... 1,771,845 1,194,709 383,427 21.6 

Canada ............................................................................................................. 55,439 27,642 6,890 12.4 

Mexico—long haul ............................................................................................ 29,052 23,952 7,375 25.4 

Mexico—all ....................................................................................................... 137,211 113,155 32,031 23.3 

U.S. ................................................................................................................... 1,579,195 1,053,912 344,506 21.8 

FY 2004: 

All inspected vehicles ....................................................................................... 1,905,244 1,286,227 423,742 22.2 

Canada ............................................................................................................. 58,960 30,425 8,161 13.8 

Mexico—long haul ............................................................................................ 12,799 9,452 3,079 24.1 

Mexico—all ....................................................................................................... 150,378 123,268 34,665 23.1 

U.S. ................................................................................................................... 1,695,906 1,132,534 380,916 22.5 

FY 2005: * 

All inspected vehicles ....................................................................................... 912,693 619,794 177,988 19.5 

Canada ............................................................................................................. 27,092 14,313 3,243 12.0 

Mexico—long haul ............................................................................................ 5,106 3,396 918 18.0 

Mexico—all ....................................................................................................... 88,159 71,560 15,367 17.4 

U.S. ................................................................................................................... 797,442 533,921 159,378 20.0 

* Inspections through April 21, 2005. 

C. Mexican-Domiciled Commercial 

Motor Vehicles 

Our understanding is that the 

commercial motor vehicles 

manufactured in Mexico are produced 

either by subsidiaries of American 

companies such as Freightliner and 

International, or by the European-based 

company Scania. There are currently 

significant differences between the 

applicable manufacturing standards of 

the United States and the European 

Union. It is unlikely that a vehicle built 

by a European manufacturer to the 

European standards would have all the 

safety equipment needed to comply 

with either the FMCSRs or the FMVSSs. 

However, according to information 

provided by the TMA, U.S. 

manufacturers or their affiliates provide 

the majority of the heavy trucks 

domiciled in Mexico.4 According to the 

50284 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

Mexican final stage manufacturer completing the 

manufacturing process. It is doubtful that any of 

these vehicles would or could be certified to the 

FMVSSs.

5A letter from TMA providing a breakdown of the 

Mexican heavy truck market is in the docket. 

Docket NHTSA–2004–11593–22.

6We believe that the vast majority of Mexicandomiciled vehicles engaged in U.S. long haul traffic 

either carry the label or were originally built to then 

applicable U.S. standards. Those potentially not 

originally built to U.S. standards are generally used 

only in the short haul drayage operation within the 

commercial zone. As noted earlier, FMCSA and 

state inspections currently focus on these vehicles.

7We note that a label certifying compliance with 

performance standards applicable to lights, brakes 

and other wear items does not ensure real world 

safety in the absence of the FMCSRs, especially 

with regard to vehicles built many years ago. The 

American public is better protected by the FMCSRs 

than solely through a label indicating that a 

commercial motor vehicle had originally been built 

to certain manufacturing performance standards.

TMA,5 U.S. manufacturers have been 

building their Mexican-domiciled 

vehicles in conformity with the FMVSSs 

since the mid to late 1990s, and over 

50,000 U.S.-certified heavy trucks have 

been sold in the Mexican market since 

1993. KenMex, a subsidiary of Paccar 

Inc., began affixing U.S. certification 

labels to all vehicles built for the 

Mexican market that met all applicable 

U.S. safety standards in that year. 

International, Freightliner, and Volvo 

began certifying most or all of their 

vehicles to the FMVSSs in 1996, 1997, 

and 1998, respectively. TMA estimates 

that approximately 4,500 additional 

heavy trucks produced by these 

manufacturers were built in accordance 

with then applicable U.S. safety 

standards, although not labeled as 

such.6

The information provided by TMA 

members provides sufficient assurance 

that a substantial number of Mexicandomiciled vehicles originally built to 

the Federal motor vehicle safety 

standards will be able to engage in 

cross-border trade between the U.S. and 

Mexico. 

V. FMCSA’s Enforcement Policy 

After carefully reviewing the 

comments filed in response to the 

FMCSA and NHTSA proposals, 

including the potential for fraud that 

was noted in the proposals, the 

Department has developed a more 

effective approach for 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. Rather than relying on 

retroactive labelling, FMCSA is 

continuing and reinforcing its program 

focused on operational safety 

requirements applicable to current 

conditions. 

First, FMCSA requires Mexicandomiciled carriers applying to operate 

in the United States to certify in their 

applications that their vehicles were 

manufactured or retrofitted in 

compliance with the FMVSSs 

applicable at the time they were built. 

False certification subjects the carrier to 

suspension or revocation of its license 

to operate in the United States. (49 CFR 

Part 365)

Second, enforcement through the 

Federal Motor Carrier Safety 

Regulations focuses on real world, 

operational safety and incorporates the 

various FMVSS applicable through the 

useful life of the vehicle.7 FMCSA will 

continue to focus on assessing 

compliance with the FMCSRs, including 

those regulations that cross reference 

the FMVSSs (e.g., lamps and reflectors, 

air brake systems [including antilock 

brake systems], rear impact guards on 

trailers, conspicuity treatments on truck 

tractors and trailers, emergency exits on 

buses, etc.).

Third, FMCSA may use Vehicle 

Identification Numbers (VINs) coupled 

with VIN information obtained from 

vehicle manufacturers, as well as other 

available information, when necessary 

to check whether vehicles were 

originally built to the FMVSSs. 

We have concluded that the 

incorporation of numerous FMVSS into 

the FMCSRs, combined with the various 

certification and inspection procedures 

being adopted by FMCSA, will better 

ensure the operational safety of 

commercial motor vehicle on the public 

roads than a program of retroactive 

certification potentially fraught with 

fraud. Accordingly, we have determined 

that the regulatory scheme proposed in 

March 2002 would serve no meaningful 

safety function and are withdrawing the 

proposal for retroactive certification and 

record keeping. 

VI. NHTSA’s Interpretation of the 

Import Prohibition in the Vehicle Safety 

Act 

In addition to proposing a regulatory 

scheme of retroactive labelling, the 

agency proposed including in the Code 

of Federal Regulations a definition of 

the word ‘‘import’’ based on a 1975 

interpretive memo. The word ‘‘import’’

appears in 49 U.S.C. 30112, which 

prohibits a motor vehicle from being 

placed into interstate commerce or 

imported into the U.S. unless it is 

certified as complying with the FMVSS 

applicable at the time. NHTSA operates 

an extensive Registered Importer 

program to ensure that vehicles 

imported for sale and permanent use in 

the U.S. comply with this requirement. 

The question here is whether the word 

‘‘import,’’ as used in this statute, 

necessarily applies to commercial motor 

vehicles that may be used temporarily 

in the United States and that are subject 

to an alternative regulatory program 

designed to ensure the vehicles operate 

safely on the U.S. roads. 

After reviewing the various 

comments, all of which raised concerns 

regarding the practical application of 

the proposed definition of the term 

‘‘import’’ as used in the Vehicle Safety 

Act, we decided to re-examine some of 

the basic assumptions made in the three 

documents that supported the agency’s 

1975 interpretation. We have delved 

more thoroughly into the language of 

the entire Vehicle Safety Act, as well as 

Congress’ intent vis-a ́-vis the treatment 

of commercial motor vehicles under the 

Act. Additionally, we decided to 

reevaluate the existing case law relevant 

to the use of the term ‘‘import’’ outside 

of the context of tariff law to see 

whether and how other statutes define 

the term. Finally, we looked at 

additional factors and in additional 

contexts that were not considered in 

developing the 1975 interpretation. We 

believe the term ‘‘import’’ is subject to 

various interpretations, of which the 

agency’s 1975 interpretation is but one. 

We do not believe it is the only 

reasonable interpretation. Accordingly, 

based on the comments we have 

received, and our research and 

evaluation, we have decided against 

adding a definition of the term in the 

Code of Federal Regulations, and we 

have decided to withdraw the agency’s 

1975 interpretation. 

A. NHTSA’s 1975 Interpretation 

The proposed interpretive rule was 

based, in large part, on the analyses 

contained in the 1975 letter from 

NHTSA’s Administrator, James Gregory, 

to the Canadian Trucking Association 

(1975 letter) and in an internal 1975 

legal memorandum that preceded that 

letter. (The 1975 letter and 

memorandum were placed in the docket 

for the NPRM.) Both the 1975 letter and 

the legal memorandum concluded that 

entrances of Canadian-domiciled 

commercial motor vehicles into the 

United States were importations under 

the Vehicle Safety Act and were not 

subject to any exceptions under that 

Act. The letter was issued in response 

to a request by the Canadian Trucking 

Association that Canadian-domiciled 

commercial motor vehicles be excluded 

from the requirements of FMVSS No. 

121, Air brake systems. At the time, 

Canada did not have a corollary 

standard. 

Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 50285

8As explained in the House Report on the Act, 

the purpose of section 108(b)(4) was to 

‘‘accommodate foreign tourists who may bring their 

vehicles with them on visits to this country and 

also to permit import of certain vehicles for 

diplomatic use. H. Rep. 1776, 89th Cong., 2d Sess., 

p.24.

9See also, 16 U.S.C. 1151, et seq., generally 

prohibiting importation, sale, or possession of 

North Pacific fur seal skins; 16 U.S.C. 1531, et seq., 

generally prohibiting importation, sale, or 

possession of endangered fish and wildlife; and 16 

U.S.C. 2401, et seq., generally prohibiting 

importation, sale, or possession of birds, mammals, 

or plants native to Antarctica, where ‘‘import’’ is 

defined by statute as bringing into the jurisdiction 

of the United States, regardless of whether such act 

constitutes an importation within the meaning of 

customs law.

In concluding that Canadian vehicles 

were imports within the meaning of the 

Vehicle Safety Act, the agency 

interpreted the term ‘‘import’’ in the 

former section 108(a)(1) of the Act (now 

codified at 49 U.S.C. 30112(a)(1)) when 

read in conjunction with the 

exemptions provided in section 

108(b)(4). Section 108(a)(1) stated that:

No person shall manufacture for sale, sell, 

offer for sale, or introduce or deliver for 

introduction in interstate commerce, or 

import into the United States, any motor 

vehicle or item of motor vehicle equipment 

manufactured on or after the date any 

applicable Federal motor vehicle safety 

standard takes effect under this title unless 

it is in conformity with such standard except 

as provided in subsection (b) of this section.

Section 108(b)(3) stated that motor 

vehicles or equipment offered for 

importation in violation of section 

108(a)(1) would be refused admission 

into the United States under joint 

regulations to be issued by the Secretary 

of Treasury and the Secretary of 

Commerce. Under an exception in 

section 108(b)(3), those regulations 

could authorize imports as long as the 

vehicles were subsequently brought into 

conformity with all applicable safety 

standards, but otherwise the vehicles 

would have to be exported or 

abandoned to the United States. The 

exception did not specify that the 

regulations only address those vehicles 

imported for sale or resale, although it 

is unlikely that anyone would so modify 

a vehicle unless it were to be 

permanently domiciled in the United 

States. Section 108(b)(4) authorized the 

issuance of joint regulations that would 

permit the temporary importation of 

used motor vehicles.8

The agency noted that the exceptions 

for non-complying imports in section 

108(b)(3) of the Act and temporary 

importation of personal vehicles in 

section 108(b)(4) of the Act would not 

be needed if foreign-domiciled vehicles 

that were not sold in the United States 

were not considered imports under 

section 108(a). The language of the 

exceptions is the strongest evidence that 

Congress intended the term ‘‘import’’ to 

apply to all vehicles brought into the 

United States. 

In our NPRM proposing the formal 

adoption of the 1975 interpretation, we 

relied on what we then believed was a 

‘‘plain meaning’’ of the term when 

considered in conjunction with the 

overall purpose of the Vehicle Safety 

Act, relying exclusively on the analysis 

proffered in 1975. We did not revisit the 

original analysis of whether the Vehicle 

Safety Act was in fact akin to the 

statutes underlying the cases relied on 

in issuing the original interpretation, or 

whether other analyses might be more 

applicable. 

B. Possible Alternative Interpretations of 

the Import Prohibition 

The term ‘‘import’’ in a statute may be 

interpreted differently based upon the 

intent of Congress in using the term. 

When Congress does not specifically 

define a particular term, its meaning 

should be construed in such a way as to 

further the goals that Congress was 

seeking to achieve when enacting the 

law. See Barnhart v. Walton, 122 S. Ct. 

1265,1270 (2002); United States v. 

Haggar Apparel Co., 526 U.S. 380,392, 

119 S. Ct. 1392, 1398 (1999), citing 

Nations Bank of N.C.N.A. v. Variable 

Annuity Life Ins. Co., 513 U.S. 251, 257, 

115 S. Ct. 810, 813–814 (1995). 

Congress’ stated goal in enacting the 

Vehicle Safety Act was ‘‘to reduce traffic 

accidents and deaths and injuries 

resulting from traffic accidents. 49 

U.S.C. 30101.

The statute should not be viewed in 

isolation, but rather in conjunction with 

other, relevant statutes. See Kokoszka v. 

Belford, 417 U.S. 642, 650, 94 S.Ct. 

2431, 2436 (1974), citing Brown v. 

Duchesne, 60 U.S. 183, 194 (1856). 

Commercial motor vehicles are subject 

to regulation under both the Vehicle 

Safety Act (codified as 49 U.S.C. 

Chapter 301, Motor Vehicle Safety) and 

49 U.S.C. Chapter 311, Commercial 

Motor Vehicle Safety. One of the 

Congressionally stated purposes for 

Chapter 311, Subchapter III, Safety 

Regulation, is ‘‘to promote the safe 

operation of commercial motor 

vehicles.’’ 49 U.S.C. 31131(a). The 

Federal Motor Carrier Safety 

Administration implements this statute 

in large part through enforcement of the 

Federal Motor Carrier Safety 

Regulations. 

In the NPRM, the agency referred to 

a dictionary definition of the word 

‘‘import,’’ meaning ‘‘to bring in 

(merchandise, commodities, workers, 

etc.) from a foreign country for use, sale, 

processing, reexport or services’’

(Random House Compact Unabridged 

Dictionary, Special Second Edition). 

The dictionary also defines the term as 

‘‘the act of importing or bringing in; 

importation, as of goods from abroad.’’

Black’s Law Dictionary also provides 

slightly differing definitions: ‘‘a product 

brought into a country from a foreign 

country where it originated’’ versus ‘‘the 

process of bringing foreign goods into a 

country’’ (Black’s Law Dictionary, 

Seventh Edition, 1999). 

1. Import—Illegal Goods Definition 

Courts have broadly defined the term 

‘‘import’’ in cases involving prohibited 

products that the government has 

seized. An example is Cunard v. Mellon, 

262 U.S. 100 (1929), the case primarily 

relied upon by NHTSA in its 1975 

analysis as supporting its ‘‘plain 

language’’ approach. The case addressed 

an interpretation of the National 

Prohibition Act, which prohibited the 

manufacture, sale and transportation, 

importation, and exportation of alcohol 

in or from any U.S. territory other than 

direct transport through the Panama 

Canal Zone. The statute was enacted in 

response to passage of the Eighteenth 

Amendment. The Court determined that 

the National Prohibition Act’s criminal 

prohibition on bringing alcohol into the 

United States (including its territorial 

waters) required a broad definition of 

the term ‘‘import’’ as used in the statute, 

since such a reading ‘‘better comports 

with the object to be attained,’’ i.e., the 

total ban on alcoholic beverages in the 

United States other than those liquors 

‘‘obtained before the act went into effect 

and kept in the owner’s dwelling for use 

therein by him, his family, and his bona 

fide guests.’’

Similar analysis can be found in more 

recent cases interpreting the criminal 

prohibition on ‘‘importation’’ of 

controlled substances (e.g., heroin, 

morphine, and cocaine), where 

‘‘import’’ is expressly and broadly 

defined by statute as ‘‘any bringing in or 

introduction of such article into any 

area (whether or not such bringing in or 

introduction constitutes an importation 

within the meaning of the tariff laws of 

the United States).’’ 9 (21 U.S.C. 951 et 

seq.) (See generally, U.S. v. Catano, 553 

F.2d 497 (5th Cir. 1975); U.S. v. Lewis, 

676 F.2d 508 (11th Cir. 1982); and U.S.

v. Perez, 776 F. 2d 759 (9th Cir. 1985).)

2. Import—Definition Used in 

Determining Whether an Item Brought 

Into the U.S. Is Subject to Tariff 

Since 1926, courts have consistently 

held that in tariff cases, unless it clearly 

appears that Congress intended 

50286 Federal Register / Vol. 70, No. 165 / Friday, August 26, 2005 / Proposed Rules 

10 40 CFR Part 94, Subpart I allows for some 

temporary importations with specified bond 

requirements (see 40 CFR 94.804).

11The Environmental Protection Agency (EPA) 

recently considered whether it should amend its 

interpretation of ‘‘new marine engines’’ to include 

engines in foreign-flag vessels, regardless of 

whether the presence of those vessels in U.S. ports 

would be treated as an import under HTSUS. 

Proposed rule; 67 FR 37548; May 29, 2002. It 

expressed concerns that the emissions of foreignflagged commercial vessels may contribute 

significantly to problems in the U.S. since U.S.-flag 

vessels only account for 6.7% of all vessels entering 

U.S. ports. In the final rule, EPA did not decide 

whether it had the discretion to interpret new to 

include foreign vessels. It indicated that deferring 

this decision may help facilitate the adoption of 

more stringent consensus international standards, 

and noted that a new set of internationally 

negotiated marine diesel engine standards would 

apply to engines on all vessels, regardless of where 

they are flagged. Final rule; 68 FR 9746, 9759; 

February 28, 2003. In any event, the circumstances 

addressed by EPA, i.e., the application or nonapplication of a solitary Federal regulatory program, 

are not closely analogous to those before this 

agency.

12The prohibition against engaging in local traffic 

was the result of cabotage laws in effect at the time. 

These laws were designed to prevent foreign 

carriers from engaging in the purely domestic 

transport of goods or passengers. Corollary laws 

applied to foreign-owned railroads, airlines and 

merchant vessels.

13U.S. Customs regulations currently provide that 

trucks, buses and other vehicles in international 

traffic shall be subject to the treatment specified in 

part 123 (19 CFR 10.41(a)), and that they may be 

admitted without formal entry or the payment of 

duty (19 CFR 123.14(a)).

14 In 1988 and 2001, the Mexican border was 

open to Mexican-domiciled carriers operating only 

in the border zones and to such carriers that had 

obtained authority to operate beyond the border 

zones before the imposition of the 1982 

moratorium.

15Statistics Canada, Trucking in Canada, 1984, 

Minister of Supply and Services Canada, 1986, table 

2.7.

otherwise, the term ‘‘importation’’

means the bringing of goods within the 

jurisdictional limits of the U.S. with the 

intent to unlade. However, the courts 

have held that this definition is not 

literally applicable to a seagoing vessel 

or yacht entering the United States 

under its own power. Instead, they have 

given deference to a Treasury 

Department ruling cited in Estate of Lev 

H. Prichard v. United States, 43 CCPA 

85, 87–88, CAD 612 (1956), which 

stated that ‘‘if coming into this country 

temporarily as carriers of passengers or 

merchandise, they [vessels] are not 

subject to customs entry or the payment 

of duty, but if brought into the United 

States permanently they are to be 

considered and treated as imported 

merchandise.’’ The court said that the 

question as to whether a vessel is 

brought into the United States 

‘‘permanently’’ must be determined on 

the basis of intent. (See generally, 

American Customs Brokerage Co., Inc.

v. United States, 375 F.Supp. 1360, 

1366 (C.C.P.A., 1974).) 

3. Import—Use of Tariff Definition in 

Non-Tariff Context 

A third alternative is that contained in 

the Harmonized Tariff Schedule of the 

United States (HTSUS), even though the 

underlying statutory concern is not 

tariff-related. In 1999, the 

Environmental Protection Agency (EPA) 

took this approach in a final rule 

establishing an emission control 

program for certain new marine diesel 

engines pursuant to the Clean Air Act 

(64 FR 73300, December 29, 1999). The 

final rule is codified at 40 CFR Part 94. 

One of the issues addressed by the final 

rule was how the application to ‘‘new 

marine engines’’ would affect the 

engines on foreign vessels that were 

engaged in international trade. The EPA 

specified that, with respect to imported 

engines, ‘‘new marine engine’’ means an 

engine that is not covered by a 

certificate of conformity at the time of 

importation, and that was manufactured 

after the starting date of the emission 

standards which are applicable to such 

engine (or which would be applicable to 

such engine had it been manufactured 

for importation into the United States). 

It then specified prohibitions against 

certain acts by all persons with respect 

to the engines covered by the 

regulation.10

For the purposes of determining what 

constitutes an importation within the 

‘‘new marine engine’’ definition, and 

consequently an importation under the 

prohibition, the EPA decided to adopt 

the approach contained in the HTSUS. 

Under the HTSUS, vessels used in 

international trade or commerce and 

personal pleasure craft brought into the 

territorial United States by nonresidents are admitted without formal 

customs consumption entry or the 

payment of a duty. EPA said that its 

approach was consistent with the 

Treasury Department ruling cited in 

Prichard discussed above. (See 

discussion at 64 FR 73300, 73302.) 11

C. Factors Not Considered in the 1975 

Interpretation or NPRM 

1. U.S. Customs Regulations in Effect in 

1966 

Neither the documents NHTSA relied 

upon when proposing an interpretive 

rule nor the preamble of that notice 

addressed the U.S. Customs regulations 

in effect when the Vehicle Safety Act 

was enacted. The 1963 Tariff Schedule 

specifically excluded commercial motor 

vehicles from entry requirements so 

long as the vehicles did not engage in 

local traffic in the United States.12 This 

exclusion was adopted as part of the 

implementation of the Tariff Act of 

1930, which provided that ‘‘vehicles 

and other instruments of international 

traffic, of any class specified by the 

Secretary of the Treasury, shall be 

granted the customary exceptions from 

the application of customs laws to such 

extent and subject to terms and 

conditions as may be prescribed in 

regulations or instructions of the 

Secretary of the Treasury.’’ (19 U.S.C. 

1322(a)). Because the foreign-domiciled 

commercial motor vehicles were not 

subject to entry under the existing Tariff 

Schedule when the Vehicle Safety Act 

was passed, any prohibition on allowing 

non-compliant commercial motor 

vehicles into the United States could 

not be enforced at the border without 

significantly amending those regulations 

in a manner inconsistent with the Tariff 

Act of 1930.13

2. Treatment of Canadian-Domiciled 

Commercial Motor Vehicles 

None of the three previous NHTSA 

documents addressed the fact that 

throughout all the different legislative 

activities addressing vehicles brought 

into the United States, Canadiandomiciled commercial motor vehicles 

were allowed to operate in the crossborder trade without being subject to 

formal entry. In 1966, when the Vehicle 

Safety Act was enacted, both the 

Mexican and Canadian borders were 

open. In 1988, when Congress passed 

the Imported Vehicle Safety Compliance 

Act of 1988, the Canadian border was 

open. In 2001, when the Murray-Shelby 

provisions of the 2002 DOT 

Appropriations Act were enacted, the 

Canadian border was open.14 None of 

the legislative histories of any of these 

statutes indicate intent on the part of 

Congress to change the operating status 

of the Canadian motor carriers, even 

though there was no basis to believe the 

foreign-domiciled commercial motor 

vehicles were fully compliant with the 

requirements of all applicable FMVSSs.

We have been unable to determine 

how many Mexican- and Canadiandomiciled motor carriers were operating 

in the trans-border trade when the 

Vehicle Safety Act was initially enacted, 

although the specific reference to these 

vehicles in the 1963 Tariff Schedule (28 

FR 14663, December 31, 1963) indicates 

that at least some foreign-domiciled 

commercial motor vehicles were being 

used to transport cargo and passengers 

to and from the United States. 

According to the statistics gathered by 

Transport Canada 15 regarding 

international carrier activities in 1984, a 

total of 941 Canadian motor carriers 

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

16See interpretation to Mr. Ted Reiniger, June 2, 

1998; to Mr. Barrie Montague, June 1, 1998.

were engaged in the U.S.-Canada crossborder trade at that time. These carriers 

owned or operated, in the aggregate, 

72,441 commercial motor vehicles. 

Thus, when Congress amended the 

Vehicle Safety Act in 1988 to address 

specifically concerns it had with the 

importation of non-compliant motor 

vehicles, the United States and Canada 

enjoyed an active trade relationship in 

which shipping via commercial motor 

vehicles clearly played a major role. Yet 

the legislative history associated with 

the 1988 amendments never raises the 

prospect that Congress was concerned 

about whether the Canadian commercial 

motor vehicles posed a safety risk while 

operating in the United States. Certainly 

Congress would have been aware that at 

least some percentage of goods imported 

to the United States from Canada were 

transported via truck, since President 

Reagan had lifted the Congressional 

moratorium on grants of new operating 

authority for Canadian carriers as 

recently as December 1982.

3. FY 2002 DOT Appropriations Act 

Finally, as noted by the comments on 

this rulemaking, by 2001, when the 

provisions of the 2002 DOT 

Appropriations Act governing Mexican 

motor carriers were enacted, the United 

States and Canada enjoyed the largest 

trading relationship in the world, with 

most of the cargo coming into the 

United States via commercial motor 

vehicles that were not certified as 

compliant with the FMVSSs. Indeed, 

the concern over compliance with all 

applicable FMVSSs was not raised 

during the debates and hearings on the 

safety of Mexican commercial motor 

vehicles. Rather, Congress’ stated 

concern was with the level of 

maintenance of the Mexican vehicles. 

Based on consideration of both the 

factors addressed by the previous 

documents interpreting the term 

‘‘import,’’ as well as the other factors 

articulated above, we have determined 

that the agency’s previous interpretation 

of the importation restriction on noncertified foreign-domiciled commercial 

motor vehicles may be overly 

encompassing and place unreasonable 

restrictions on foreign-based motor 

carriers. Unlike statutes related to the 

regulation and control of narcotics, the 

Vehicle Safety Act does not require, or 

even allow, NHTSA to eliminate 

entirely the possibility of motor vehicle 

crashes in this country. While the 

agency was directed to establish motor 

vehicle safety standards, those 

standards must be practicable (both 

technically and financially) and must 

meet the need for motor vehicle safety 

(49 U.S.C. 30111). Additionally, the 

Vehicle Safety Act does not directly 

regulate used vehicles. The authority 

rests with the states, subject to the 

Vehicle-in-Use Inspection Standards (49 

CFR Part 570). Likewise, while the 

Vehicle Safety Act prohibits motor 

vehicle repair businesses from making 

required safety equipment inoperative 

(49 U.S.C. 30122), it does not prohibit 

individuals from modifying their own 

vehicles in whatever manner they 

choose. 

Additionally, unlike the narcotics 

laws, possession of non-compliant 

motor vehicles has never been illegal. 

Indeed, section 108(b), as originally 

enacted, provides for several 

circumstances under which the sale, 

delivery, introduction, or importation of 

non-compliant vehicles are not 

prohibited. As noted above, there is no 

prohibition against the sale, offer for 

sale, or introduction or delivery of noncompliant used motor vehicles. The 

prohibition does not apply to vehicles 

that are imported into the U.S. pursuant 

to joint regulations issued by Customs 

and NHTSA. Finally, it does not apply 

to vehicles labeled for export. The 1988 

amendments further expanded the 

number of exceptions to the general 

prohibition by adding an exemption for 

vehicles that are at least 25 years old. 

The NPRM was proposed to provide 

context to the proposals for retroactive 

certification and record keeping. These 

proposals did not consider whether, as 

we have learned through the benefit of 

notice and comment rulemaking, 

alternative approaches can better serve 

the nation’s safety needs. The FMCSA’s 

program of enforcing its on-the-road 

operational standards, combined with 

the processes it is establishing to check 

that vehicles were originally built to 

then applicable U.S. standards, satisfies 

the stated Congressional concern over 

the maintenance of Mexican trucks 

better than any program of retroactive 

labelling. 

The NPRM proposing to add to the 

Code of Federal Regulations a definition 

of ‘‘import’’ relied heavily on the 1975 

memo and added little analysis. We did 

not consider whether the overall 

regulatory scheme applicable to 

commercial motor vehicles would alter 

our conclusory statement about the 

purposes of the Vehicle Safety Act, nor 

whether it should affect our 

proclamation that such vehicles are 

equivalent to criminally illegal illicit 

drugs and contraband. The public 

comments we received have led us to 

review and consider more fully the 

underlying basis for the 1975 memo, 

and therefore the NPRM. Our more 

thorough and careful review leads us to 

conclude that the proposed definitional 

regulation does not adequately reflect 

the current regulatory environment and, 

in light of FMCSA’s program to ensure 

operational safety, would provide no 

additional safety benefit. Accordingly, 

we have decided to withdraw the 

proposed definitional regulation.

We also believe it is important to note 

that while NHTSA issued its 

interpretation of the word ‘‘import’’ in 

1975 in the context of addressing 

whether Canadian-domiciled 

commercial motor vehicles operating in 

the United States must meet the 

requirements of NHTSA’s safety 

standard on air brake systems, as a 

practical matter NHTSA has never 

required vehicles with CMVSS labels to 

also carry FMVSS labels. Indeed, the 

comments indicate that the primary 

burdens associated with retroactive 

certification would fall on Canadiandomiciled commercial motor carriers, 

which have long been operating safely 

in the U.S. using commercial vehicles 

that were certified to the CMVSS and 

also met the FMCSRs. 

In practice, NHTSA has generally 

sought to ensure that non-U.S.-

domiciled commercial motor vehicles 

meet the same safety standards as U.S. 

vehicles (or very similar standards) by 

other means, especially working with 

FMCSA. We note, for example, that in 

responding to requests for interpretation 

in the late 1990’s as to whether 

Canadian carriers can operate in the 

U.S. without the antilock brake systems 

required by NHTSA’s safety standard, 

NHTSA’s responses referred to the 

Federal motor carrier safety regulations 

rather than to our 1975 interpretation.16

Also, NHTSA and Transport Canada 

have a close working relationship.

Thus, the approach discussed 

elsewhere in this document that the 

Department will be following for 

ensuring that commercial vehicles were 

built to the FMVSS (or the very similar 

CMVSS) and operate safely in the 

United States is consistent with our 

longstanding practices.

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

Appendix

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

GVWR 

Title CMVSS FMVSS Most stringent 

CMVSS No. 101, Controls and displays.

FMVSS No. 101, Controls and displays. 

—Requires the ISO brake failure 

symbol if a common brake malfunction indicator is used.

—Requires the word ‘‘brake’’ with 

minimum height if a common 

brake malfunction indicator is 

used.

Safety difference is inconsequential. 

CMVSS No. 102, Transmission 

control functions.

FMVSS No. 102, Transmission 

shift lever sequence, starter 

interlock, and transmission braking effect. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 103, Windshield 

defrosting and defogging.

FMVSS No. 103, Windshield 

defrosting and defogging systems. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 104, Windshield wiping and washing system.

FMVSS No. 104, Windshield wiping and washing system. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 105, Hydraulic and 

electric brake systems.

FMVSS No. 105, Hydraulic and 

electric brake systems. 

—Requires statement to the same 

effect as U.S. for brake fluid 

reservoir labeling.

—Requires the ISO ABS symbol 

for indicating ABS malfunction 

—Requires specific working for 

brake fluid reservoir labeling.

—Requires the word ‘‘ABS’’, 

‘‘Anti-lock’’ or ‘‘Antilock’’ with 

minimum height for indicating 

ABS malfunction. 

Safety differnce is inconsequential. 

CMVSS No. 106, Brake hoses ......

FMVSS No. 106, Brake hoses. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 108, Lighting system 

and retro-reflective devices.

FMVSS No. 108, Lamps, reflective 

devices, and associated equipment. 

—Requires Daytime running lights 

—Allows European headlamps. 

Allows, but does not require daytime running lights.—CMVSS on daytime running 

lights. 

—Allowance of European 

headlamps is a significant difference. 

CMVSS No. 111, Mirrors ...............

FMVSS No. 111, Rearview mirrors. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 113, Hood latch system.

FMVSS No. 113, Hood latch system. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 116, Hydraulic brake 

fluids.

FMVSS No. 116, Motor vehicle 

brake fluids. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 119, Tires for vehicles 

other than passenger cars.

FMVSS No. 119, New pneumatic 

tires for vehicles other than passenger cars. 

Requires maple leaf certification 

marking.

Requires DOT marking ................. Saftey difference is inconsequential. 

CMVSS No. 120, Tire selection 

and rims for vehicles other than 

passenger cars.

FMVSS No. 120, Tire selection 

and rims for motor vehicles 

other than passenger cars. 

No significant differences Safety difference is inconsequential. 

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

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

GVWR—Continued

Title CMVSS FMVSS Most stringent 

CMVSS No. 121, Air brake systems.

FMVSS No. 121, Air brake systems. 

Requires the ISO ABS symbol for 

indicating ABS malfunction.

Requires the letters ‘‘ABS’’ or 

‘‘Antilock’’ with minimum height 

for indicating ABS malfunction.

Safety difference is inconsequential. 

CMVSS No. 124, Accelerator control systems.

FMVSS No. 124, Accelerator control systems. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 131, School bus pedestrian safety devices.

FMVSS No. 131, School bus pedestrian safety devices. 

No significant differences Safety difference is inconsequential. 

CMVSS No. 203, Driver impact 

protection.

FMVSS No. 203, Impact protection 

for the driver from the steering 

control system. 

Requirement that clothing and 

jewelry cannot catch on steering wheel.

Requirement that clothing and 

jewelry cannot catch on steering wheel does not apply to vehicles of this class.

CMVSS. 

CMVSS No. 205, Glazing materials.

FMVSS no. 205, Glazing materials. 

References more recent version 

of ANSI Z26 test requirement, 

but allows older versions to be 

followed.

Only references older versions of 

ANSI Z26.

Safety difference is inconsequential. 

CMVSS No. 207, Anchorage of 

seats.

FMVSS No. 207, Seating systems. 

All seats must be tested as an assembly of seat and seat base 

when installed in vehicle.

Allows separate testing of seating 

and seat base tested in a test 

fixture.

CMVSS. 

CMVSS No. 208, Occupant protection in frontal impact.

FMVSS No. 208, Occupant crash 

protection. 

All vehicles must have seat belt ... Allows for crash testing in lieu of 

seat belts in vehicles over 

4,536 kg.

Safety difference is inconsequential. 

CMVSS No. 209, Seat belt assemblies.

FMVSS No. 209, Seat belt assemblies. 

—Includes a colorfastness test ....

—Requires label stating seat belt 

assembly must be installed in 

vehicle with an air bag if load 

limiters are used. 

....................................................... Safety difference is inconsequential. 

CMVSS No. 210, Seat belt assembly anchorages.

FMVSS No. 210, Seat belt assembly anchorages. 

Different requirements for seat 

belt anchorage location for adjustable seats with seat travel 

greater than 70 mm than for 

seats with seat travel equal to 

or less than 70 mm.

Provides an exemption from seat 

belt anchorage installation, 

strength, and location requirements if certified to unbelted 

barrier test in FMVSS No. 208.

Safety difference is inconsequential. 

CMVSS No. 217, Bus window retention, release and emergency 

exits.

FMVSS No. 217, Bus emergency 

exits and window retention and 

release. 

Requires push-out windows on all 

buses other than school buses.

Requires either push-out windows 

or sliding windows.

Safety difference is inconsequential. 

CMVSS No. 301.1—LPG Fuel system integrity........................................................ No FMVSS corollary ..................... CMVSS. 

CMVSS No. 301.2—CNG fuel system integrity.

FMVSS No. 303, Fuel system integrity of compressed natural 

gas vehicles/FMVSS No. 304, 

compressed natural gas fuel 

container integrity. 

—Applies to all vehicles ...............

—Fuel container must remain attached to vehicle at minimum of 

one attachment point. 

—Adopts environmental testing 

requirements of CSA B51 or 

ANSI/AGA–NGV 2. 

—Only regulated vehicles over 

4,536 kg are school buses.

—No environmental testing requirements. 

CMVSS. 

CMVSS No. 302, Flammability ......

FMVSS No. 302, Flammability of 

interior materials. 

No significant differences Safety difference is inconsequential. 

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

TABLE 2.—COMPARISON OF CMVSS AND FMVSS REQUIREMENTS FOR TRUCKS TRAILER OVER 4,536 KG (10,000 LB) 

GVWR 

Title CMVSS FMVSS Most stringent 

CMVSS No. 108, Lighting system 

and retro-reflective devices.

FMVSS No. 108, Lamps, reflective 

devices, and associated equipment. 

—Requires pole trailers to have 

reflective markings.

—Allows colors of reflective tape 

other than red and white markings (e.g., all white or all orange). 

Requires red and white reflective 

tape.

—CMVSS on pole trailers. 

—FMVSS on reflective tape. 

CMVSS No. 119, Tire for vehicles 

other than passenger cars.

FMVSS No. 119, Tire for vehicles 

other than passenger cars. 

Requires maple leaf certification 

marking.

Requires DOT marking ................. Safety difference is inconsequential. 

CMVSS No. 120, Tire selection 

and rims for vehicles other than 

passenger cars.

FMVSS No. 120, Tire selection 

and rims for motor vehicles 

other than passenger cars. 

No significant differences. Safety difference is inconsequential. 

CMVSS No. 121, Air brake systems.

FMVSS No. 121, Air brake systems. 

No significant differences. Safety difference is inconsequential. 

FMVSS No. 223, Rear impact 

guards/FMVSS No. 224, Rear 

impact protection.

No CMVSS corollary. ................... Trailers must be equipped with 

rear impact guard having 

strength requirement of 100kN 

and 5.65 kJ of energy absorption on one side.

FMVSS 

Issued on: August 22, 2005. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking.

[FR Doc. 05–16968 Filed 8–25–05; 8:45 am] 

BILLING CODE 4910–59–P