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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Docket ID: [Docket No. NHTSA 2008-0113; Notice 1]
NOTICE: NOTICES
DOCUMENT ACTION: Request for public comments.
SUBJECT CATEGORY: Request for Public Comments on Guidance and Recommended Best Importer Practices To Enhance the Safety of Imported Motor Vehicles and Motor Vehicle Equipment
DATES: You should submit your comments early enough to ensure that Docket Management receives them not later than August 7, 2008.
DOCUMENT SUMMARY: This notice solicits comments from the public, from importers and manufacturers of motor vehicles and motor vehicle equipment, and from other interested parties concerning best practices to be followed by importers of motor vehicles and motor vehicle equipment to reduce the likelihood of importing products that contain defects related to motor vehicle safety or do not comply with applicable Federal motor vehicle safety standards.
SUMMARY: Guidance and Recommended Best Importer Practices to Enhance the Safety of Imported Motor Vehicles, etc.,
SUPPLEMENTAL INFORMATION
I. BackgroundA. National Highway Traffic Safety Administration
The National Highway Traffic Safety Administration (NHTSA) administers the National Traffic and Motor Vehicle Safety Act of 1966, as amended, 49 U.S.C. chapter 301 (the Vehicle Safety Act). Under that authority, NHTSA issues and enforces Federal motor vehicle safety standards (FMVSS) that apply to motor vehicles and to certain items of motor vehicle equipment. NHTSA also monitors motor vehicles and items of motor vehicle equipment that are imported into the United States for compliance with applicable FMVSS. In recent years, an everincreasing number of motor vehicles and motor vehicle equipment items sold in the United States have been imported. For example, in 1996 imported tires comprised just 19 percent of the 282 million tires sold that year in the United States. By 2006, imported tires rose to 46 percent of all tire sales, with 140 million tires being imported. Nearly all motorcycle helmets are now imported, as is the case for a large percentage of vehicle lighting equipment sold in this country.
NHTSA's enforcement program has two major elements, compliance testing and defects investigation. As the volume
[[Page 39079]]
of motor vehicle and equipment imports has increased, NHTSA's scrutiny
of those imports through both compliance testing and defect
investigations has also grown. However, recent experience has
demonstrated that companies importing products regulated by NHTSA,
particularly motor vehicle equipment, play an especially important role
in ensuring that those items comply with the FMVSS and are not likely
to be defective. At the same time, both NHTSA's recent experience and
that of other agencies with regulatory authority over the safety of
imported goods indicate that the entire importing community could
benefit by following practices that help ensure the safety of imported
products and reduce the likelihood of unsafe products entering the United States.
B. The Interagency Working Group ReportStrategic Framework
On July 18, 2007, the President issued Executive Order 13439 to establish the Interagency Working Group on Import Safety (the ``Working Group''). The Department of Transportation, including NHTSA, participated in the Working Group. As part of its mission, the Working Group identified strategies that could be pursued within existing resources to promote the safety of imported products. To begin identifying best practices for import safety, the Working Group held consultations with the private sector, reviewed current import safety procedures and methods, surveyed the authorities and practices of Federal agencies, and worked with the importing community. The Working Group recognized that U.S. importers are responsible for ensuring the safety of regulated products they import into the United States and should follow best practices to assure safety through methods that include: (1) Selecting foreign manufacturers to produce their products; (2) inspecting foreign manufacturing facilities; (3) inspecting goods produced on their behalf either before export or before distribution in the United States; (4) identifying the product's country of origin; and (5) safeguarding the supply chain.
In September 2007, the Working Group published a report entitled
``Protecting American Consumers Every Step of the Way: A Strategic
Framework for Continual Improvement in Import Safety'' (the ``Strategic
Framework''), which inaugurated the process of identifying action steps
needed to enhance the safety of imported products.\1\ The Strategic
Framework promotes taking a costeffective, riskbased approach that has the following key principles:
\1\ Interagency Working Group on Import Safety, ``Protecting
American Consumers Every Step of the Way: A strategic framework for
continual improvement in import safety'' (Washington, DC, September
2007) http://www.importsafety.gov/report/report.pdf.
(1) PreventionPrevent harm in the first place. The Strategic
Framework recognizes that the Federal government must work with the
private sector and with foreign governments to adopt an approach to
import safety that builds safety into the manufacturing and distribution processes;
(2) InterventionIntervene when risks are identified. The
Strategic Framework encourages Federal, state, local, and foreign
governments, along with foreign manufacturers and the importing
community, to adopt more effective techniques for identifying potential
noncompliant and/or defective products. When problems are identified,
the Strategic Framework recognizes that government officials must act
swiftly, and in a coordinated manner, to seize, destroy or otherwise
prevent noncompliant and/or defective products from advancing beyond the pointofentry; and
(3) ResponseRespond rapidly after harm has occurred. In the event
that an unsafe imported product makes its way into domestic commerce,
the Strategic Framework recommends swift action to limit potential exposure and harm to the American public.
C. Working GroupAction Plan
The Working Group promised to solicit extensive comments and
recommendations from the public, and to provide an action plan by mid
November. On November 6, 2007, the Working Group submitted its report
entitled ``Action Plan for Import Safety: A roadmap for continual
improvement'' (the ``Action Plan'').\2\ As described in the Action
Plan, that document represents the culmination of thousands of hours of
research and analysis, as well as public comment received from hundreds
of stakeholders. In the Action Plan, the Working Group set forth 14
broad recommendations and 50 specific action steps based on the key
principles described abovePrevention, Intervention, and Response. For
each of these key principles, the Action Plan identifies the cross
cutting building blocks that departments and agencies should use to
guide their import safety programs. Building Block Number 2, with the
subject heading Increase Accountability, Enforcement, and Deterrence,
acknowledges that while it is important to remember that industry has a
financial interest to sell safe products to consumers, all stakeholders
involved in the production, distribution, and sale of imports must be
held accountable to ensure that imported products meet Federal safety
standards in the United States. The Action Plan recommended that
Federal agencies ``work with the importing community and other members
of the public to develop Good Importer Practices and issue guidance
with respect to particular product categories.'' \3\ Although some
members of the importing community have established best practices on
their own, the majority of importers do not have available best
practices that are focused on ensuring product safety. The Working
Group believes that by developing best importer practices, the entire
importing community may benefit from taking appropriate steps to ensure
the safety of imported products and to reduce the likelihood of unsafe products entering the United States.
\2\ Interagency Working Group on Import Safety, ``Action Plan for Import Safety: A roadmap for continual improvement''
(Washington, DC, November 2007) http://www.importsafety.gov/report/ actionplan.pdf.
\3\ The Action Plan, Recommendation 3.1, pp. 2021.
II. NHTSA's Implementation of the Working Group's Recommendation on Best Importer Practices
The Action Plan encourages Federal agencies to work with the
importing community to develop best importer practices that will
provide strategies for evaluating foreign suppliers and imported
products. The Food and Drug Administration (FDA) is in the process of
issuing a set of Good Importer Practice recommendations on behalf of
select Federal agencies and departments that are members of the
Interagency Working Group on Import Safety. Those departments and
agencies include the Consumer Product Safety Commission, the
Environmental Protection Agency, the U.S. Department of Agriculture,
the U.S. Department of Commerce, the U.S. Department of Health and
Human Services, the U.S. Department of Homeland Security, and the U.S.
Department of Transportation (DOT). As the DOT representative to this
working group, NHTSA has participated in the development of the Good
Importer Practice recommendations that are awaiting issuance by the
FDA. Those recommendations are intended to be generic in nature, and
not specific to the products that are regulated by any particular
Federal agency. In contrast, the Best Importer Practice recommendations
that are the subject of this notice are intended for importers of [[Page 39080]]
motor vehicles and motor vehicle equipment, the products that are
regulated by NHTSA. The FDA will be publishing a Federal Register
notice in the future to solicit public comments on the generic Good Importer Practices recommendations.
In this notice, NHTSA begins the process of assembling for guidance and informative purposes a set of suggested best practices for importers of motor vehicles and motor vehicle equipment. NHTSA is not establishing a binding set of rules on best practices or even suggesting that a single set of best practices would apply in all situations. The agency fully realizes that best practices may vary widely depending on the item being imported and the scale of an importer's operations. We also recognize that such practices must remain fluid to account for changes in safety regulations and the global economic environment. Importers remain free to choose the practices that best fit their needs in ensuring compliant and defect free products. Moreover, these recommended practices do not establish any defenses to any violations of the statutes and regulations that NHTSA administers.
In the paragraphs that follow, we have presented our proposed
recommendations on best importer practices under the following headings:
After receiving comments, we will issue a subsequent notice delineating a final set of recommended best practices for informative purposes. We will also post those best practices on the agency's Web site for easy reference.
III. Comments and Recommendations Requested
Under the Vehicle Safety Act, manufacturers, including importers, are responsible for the safety of their products that are sold in or otherwise enter the United States. NHTSA has a standard setting and oversight/enforcement role and may issue guidance that provides valuable information to the affected communities. U.S. consumers provide valuable feedback to manufacturers and to NHTSA, which has a hotline for consumers to report problems with motor vehicles and motor vehicle equipment. To further this objective, the agency is asking the public, the importing community, and both foreign and domestic fabricating manufacturers of motor vehicles and motor vehicle equipment to provide comments and recommendations that address the agency's initial thoughts on the suggested guidance regarding best importer practices set forth below.
We are confident that capable and responsible manufacturers possess
a body of knowledge about their respective products that, if shared,
could benefit the importing community. We also welcome comments and
recommendations from accreditation and certification bodies, as well as
professional organizations with interests relating to best practices,
particularly in the area of monitoring engineering design and
manufacturing processes and facilities, recordkeeping incident to those
activities, assessing safety defects and noncompliances and taking
needed corrective actions, and facilitating continual process
improvements. Commenters who recommend specific best practices should
be careful to address the practical impacts that those practices may
have on businesses of differing size and the relative costs and benefits of implementing various practices.
IV. Public Participation
How Do I Prepare and Submit Comments?
Your comments must be written in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.
Your comments must not be more than 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.
Please submit two copies of your comments, including the attachments, to Docket Management identified at the beginning of this document, under ADDRESSES.
How Can I Be Sure That My Comments Were Received?
If you wish Docket Management to notify you upon its receipt of your comments, enclose a selfaddressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
How Do I Submit Confidential Business Information?
If you wish to submit any information under a claim of confidentiality, you must follow the procedures found in 49 CFR part 512. Requests for confidential treatment are submitted to the Chief Counsel, NHTSA, (NCC111), Room W41227, 1200 New Jersey Avenue, SE., Washington, DC 20590. Each request must be made in writing, explain the basis for the request and describe the materials for which confidential treatment is sought. Confidential information must be properly marked and accompanied by a certification attesting to the confidential nature of the materials. Each request for confidential treatment should include two copies of the confidential material and one copy from which the information claimed as confidential has been removed. In addition, you should submit two additional copies of the information without the claimed confidential business information to Docket Management at the address given above under ADDRESSES.
Will the Agency Consider Late Comments?
We will consider all comments that Docket Management receives before the close of business on the comment closing date identified at the beginning of this notice under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date.
How Can I Read the Comments Submitted by Other People?
You may read the comments received by Docket Management at the address and times given at the beginning of this document under ADDRESSES.
You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:
(1) Go to the Federal Docket Management System (FDMS) Web page
http://www.regulations.gov. (2) On that page, click on ``search for dockets.''
(3) On the next page (http://www.regulations.gov/fdmspublic/
component/main), select NATIONAL HIGHWAY TRAFFIC SAFETY [[Page 39081]]
ADMINISTRATION from the dropdown menu in the Agency field, enter the
Docket ID number and title shown at the heading of this document, and
select ``NOTICES'' from the dropdown menu in the Type field.
(4) After entering that information, click on ``submit.''
(5) The next page contains docket summary information for the
docket you selected. Click on the comments you wish to see. You may
download the comments. Although the comments are imaged documents,
instead of the word processing documents, the ``pdf'' versions of the
documents are word searchable. Please note that even after the comment
closing date, we will continue to file relevant information in the
Docket as it becomes available. Further, some people may submit late
comments. Accordingly, we recommend that you periodically search the Docket for new material.
V. Executive Order 12866 on ``Significant Guidance''
On January 18, 2007, the President issued Executive Order (E.O.) 13422, ``Further Amendment to Executive Order 12866 on Regulatory Planning and Review.'' On the same day, in connection with E.O. 13422, the Director of the Office of Management and Budget (OMB) issued OMB Bulletin No. 0702 on ``Agency Good Guidance Practices.'' The primary focus of E.O. 13422 and OMB Bulletin No. 0702 is to improve the way the Federal government does business with respect to guidance documentsby increasing their quality, transparency, accountability, and coordination.
Both Executive Order 13422 and OMB Bulletin No. 0702 define ``guidance documents'' as ``an agency statement of general applicability and future effect, other than a regulatory action, that sets forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statutory or regulatory issue.'' Guidance documents that are not ``significant'' are not covered by E.O.s 13422, 12866, or Bulletin No. 0702.
A ``significant'' guidance document is one disseminated to
regulated entities or the general public that may reasonably be anticipated to:
(1) Lead to an annual effect of $100 million or more or adversely
effect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities;
(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impacts of entitlements, grants,
user fees or loan programs or the rights or obligations of recipients thereof; or,
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in this Executive order.
Today's proposed ``Best Importer Practices'' document does not meet any of the four stated criteria for a guidance document to be ``significant.'' In fact, one purpose of this draft document is to help manufacturers and importers of motor vehicles and motor vehicle equipment to understand the coordinated roles of NHTSA and U.S. Customs and Border Protection in the import process. Therefore, this document is not subject to E.O. 13422, E.O. 12866, or to OMB Bulletin 0702. For this reason, no economic analysis of this document has been prepared.
However, since NHTSA recognizes the public interest in this document, we solicit public comment, before issuing a final ``Best Importer Practices'' document. We hope to publish a final guidance document that will be as understandable and as userfriendly as possible for manufacturers and importers of motor vehicles and motor vehicle equipment.
In writing this draft ``Best Practices'' document, we have also
voluntarily sought to incorporate E.O. 12866's principles (applicable
to rules) that agencies write in ``plain language.'' Application of the
principles of plain language includes consideration of the following questions:
Comments on how this draft document may be made more understandable to manufacturers and importers of motor vehicles and motor vehicle equipment and to the general public are solicited.
In light of the foregoing, NHTSA proposes the following guidance
and recommended best practices for importers of motor vehicles and motor vehicle equipment:
Guidance and Recommended Best Practices for Importers of Motor Vehicles and Motor Vehicle Equipment
The National Highway Traffic Safety Administration (NHTSA) is the
U.S. government agency responsible for implementing and enforcing the
National Traffic and Motor Vehicle Safety Act of 1966, as amended, 49
U.S.C. chapter 301 (the Vehicle Safety Act), and certain other laws
relating to motor vehicle safety. Those laws impose distinct duties on
manufacturers, including importers, of motor vehicles and motor vehicle
equipment intended for onroad use in the United States. Companies that
import these products must ensure that the products comply with Federal
motor vehicle safety standards (FMVSS). If a product does not comply
with an applicable FMVSS or contains a defect related to motor vehicle
safety, including a defect that manifests itself after considerable
operation in the field, the manufacturer must recall it. Obviously, it
is best if the motor vehicle or equipment complies with applicable
FMVSS and does not manifest defects. To reduce the likelihood of
defects and noncompliances, manufacturers, including importers, should
become familiar with the best practices suggested here and adapt them
to their specific needs. NHTSA is also very willing to work closely
with individual importers to explain our standards, reporting requirements, regulatory program, and enforcement process.
(1) Fully Understand the Importer's Obligations under Motor Vehicle Safety Statutes and Regulations
Before importing motor vehicles or motor vehicle equipment into the
United States, it is essential that the importer understand its
obligations under Federal statutes and regulations governing vehicle
safety. This section summarizes those obligations stemming from the Vehicle Safety Act, which the NHTSA administers.\4\
\4\ It is wise for manufacturers and importers to become
familiar with other laws not administered by NHTSA, such as State
tort laws, which could impact the decision to sell products in the United States.
(a) Certification of Motor Vehicles and Equipment to the Federal Motor Vehicle Safety Standards
The Safety Act authorizes NHTSA to issue the FMVSS, which set
minimum performance requirements for motor vehicles and for certain
items of motor vehicle equipment. See 49 CFR part 571. In general,
motor vehicles are vehicles driven or drawn by mechanical power [[Page 39082]]
and manufactured primarily for use on public roads. Motor vehicles have the following type classifications:
The following motor vehicle equipment items are also subject to the
FOR FURTHER INFORMATION CONTACT Clint Lindsay, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590 (2023665288).
Common CFR Searches
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 47 CFR Part 73 26 CFR Part 1 50 CFR Part 679 40 CFR Part 180 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 40 CFR Part 63 6 CFR Part 5 33 CFR Part 100 50 CFR Part 622 50 CFR Part 660 26 CFR Part 301 44 CFR Part 65 39 CFR Part 111 40 CFR Part 271 40 CFR Part 300 47 CFR Part 64 40 CFR Parts 52 and 81 50 CFR Part 665 39 CFR Part 3020 50 CFR Part 229 44 CFR Part 64 49 CFR Part 571