Daily Rules, Proposed Rules, and Notices of the Federal Government
We are increasing the fees for the registration of a new RI from $795 to $805 and the annual fee for renewing an existing registration from $670 to $676. The fee to reimburse Customs for conformance bond processing costs will decrease from $9.93 to $9.09 per bond. The fee for the review, processing, handling, and disbursement of cash deposits that are submitted in lieu of a conformance bond will decrease from $514 to $495. We are decreasing the fees for the importation of a vehicle covered by an import eligibility decision made on an individual model and model year basis. For vehicles determined eligible based on their substantial similarity to a U.S. certified vehicle, the fee will decrease from $158 to $101. For vehicles determined eligible based on their capability of being modified to comply with all applicable FMVSS, the fee will also decrease from $158 to $101. The fee for the inspection of a vehicle will remain $827. The fee for processing a conformity package will decrease from $17 to $12. If the vehicle has been entered electronically with Customs through the Automated Broker Interface (ABI) and the RI has an email address, the fee for processing the conformity package will continue to be $6, provided the fee is paid by credit card. If NHTSA finds that the information in the entry or the conformity package is incorrect, the processing fee will remain $57, representing the fee that is currently charged when there are one or more errors in the ABI entry or omissions in the statement of conformity.
The petition must contain a brief statement of the complaint and an explanation as to why compliance with the final rule is not practicable, is unreasonable, or is not in the public interest. Unless otherwise specified in the final rule, the statement and explanation together may not exceed 15 pages in length, but necessary attachments may be appended to the submission without regard to the 15-page limit. If it is requested that additional facts be considered, the petitioner must state the reason why they were not presented to the Administrator within the prescribed time. The Administrator does not consider repetitious petitions and unless the Administrator otherwise provides, the filing of a petition does not stay the effectiveness of the final rule.
This rule was preceded by a notice of proposed rulemaking (NPRM) that NHTSA published on June 13, 2012 (77 FR 35338).
The National Traffic and Motor Vehicle Safety Act, as amended by the Imported Vehicle Safety Compliance Act of 1988, and recodified at 49 U.S.C. 30141-30147 (“the Act”), provides for fees to cover the costs of the importer registration program, the cost of making import eligibility decisions, and the cost of processing the bonds furnished to Customs. Certain fees became effective on January 31, 1990, and have been in effect, with modifications, since then. On June 24, 1996, we published a notice in the
We are required to review and make appropriate adjustments at least every two years in the fees established for the administration of the RI program.
The fees adopted in this final rule are based on time expenditures and costs associated with the tasks for which the fees are assessed. The fees adopted in this notice reflect the freeze in General Schedule salary rates since January 2010 and the slight increases in indirect costs attributed to the agency's overhead costs since the fees were last adjusted.
There were no comments in response to the notice of proposed rulemaking.
Section 30141(a)(3) of Title 49, U.S. Code provides that RIs must pay the annual fees established “to pay for the costs of carrying out the registration program for importers * * *.” This fee is payable both by new applicants and by existing RIs. To maintain its registration, each RI, at the time it submits its annual fee, must also file a statement affirming that the information it furnished in its registration application (or in later submissions amending that information) remains correct. 49 CFR 592.5(f).
To comply with the statutory directive, we reviewed the existing fees and their bases in an attempt to establish fees that would be sufficient to recover the costs of carrying out the registration program for importers for at least the next two fiscal years. The initial component of the Registration Program Fee is the fee attributable to processing and acting upon registration applications. We will increase this fee from $320 to $330 for new applications. We have also determined that the fee for the review of the annual statement submitted by existing RIs who wish to renew their registrations will be increased from $195 to $201. These fee adjustments reflect our time expenditures in reviewing both new applications and annual statements with accompanying documentation, and the small increases in indirect costs attributed to the agency's overhead costs in the two years since the fees were last adjusted.
We must also recover costs attributable to maintenance of the registration program that arise from the need for us to review a registrant's annual statement and to verify the continuing validity of information already submitted. These costs also include anticipated costs attributable to the possible revocation or suspension of registrations and reflect the amount of time that we have devoted to those matters in the past two years.
Based upon our review of these costs, the portion of the fee attributable to the maintenance of the registration program is approximately $475 for each RI. When this $475 is added to the $330 representing the registration application component, the cost to an applicant for RI status comes to $805, which is the fee we are adopting. This represents an increase of $10 over the existing fee. When the $475 is added to the $201 representing the annual statement component, the total cost to an RI for renewing its registration comes to $676, which represents an increase of $6.
Section 594.6(h) enumerates indirect costs associated with processing the annual renewal of RI registrations. The provision states that these costs represent a
Section 30141(a)(3)(B) also requires registered importers to pay other fees the Secretary of Transportation establishes to cover the costs of “making the decisions under this subchapter.” This includes decisions on whether the vehicle sought to be imported is substantially similar to a motor vehicle that was originally manufactured for importation into and sale in the United States and certified by its original manufacturer as complying with all applicable FMVSS, and whether the vehicle is capable of being readily altered to meet those standards. Alternatively, where there is no substantially similar U.S.-certified motor vehicle, the decision is whether the safety features of the vehicle comply with, or are capable of being altered to comply with, the FMVSS based on destructive test information or such other evidence that NHTSA deems to be adequate. These decisions are made in response to petitions submitted by RIs or manufacturers, or on the Administrator's own initiative.
The fee for a vehicle imported under an eligibility decision made in response to a petition is payable in part by the petitioner and in part by other importers. The fee to be charged for each vehicle is the estimated
Since we last amended the fee schedule, the overall number of vehicle imports by RIs has increased, while the number of petitions has remained approximately the same. The total number of vehicles that RIs imported each year from 2009 to 2011 more than doubled from approximately 10,000 to 23,000, respectively. Over the same period, the number of vehicles imported under an import eligibility petition that was submitted by an RI (as opposed to an import eligibility decision initiated by the agency) increased from 485 in 2009 to 514 in 2010. That number subsequently decreased to 404 in 2011. Because the number of petitions has remained level over the past two years—averaging 12 per year—the agency has devoted approximately the same amount of staff time reviewing and processing import eligibility petitions.
Based on these trends, the
We are not increasing the current fee of $175 that covers the initial processing of a “substantially similar” petition. Likewise, we are also maintaining the existing fee of $800 to cover the initial costs for processing petitions for vehicles that have no substantially similar U.S.-certified counterpart. In the event that a petitioner requests an inspection of a vehicle, the fee for such an inspection will remain $827 for vehicles that are the subject of either type of petition.
The importation fee varies depending upon the basis on which the vehicle is determined to be eligible. For vehicles covered by an eligibility decision on the agency's own initiative (other than vehicles imported from Canada that are covered by import eligibility numbers VSA-80 through 83, for which no eligibility decision fee is assessed), the fee remains $125. NHTSA determined that the costs associated with previous eligibility determinations on the agency's own initiative would be fully recovered by October 1, 2012. We will apply the fee of $125 per vehicle only to vehicles covered by determinations made by the agency on its own initiative on or after October 1, 2012.
Section 30141(a)(3) also requires a registered importer to pay any other fees the Secretary of Transportation establishes “to pay for the costs of—(A) processing bonds provided to the Secretary of the Treasury * * *” upon the importation of a nonconforming vehicle to ensure that the vehicle would be brought into compliance within a reasonable time, or if it is not brought into compliance within such time, that it be exported, without cost to the United States, or abandoned to the United States.
The Department of Homeland Security (Customs) exercises the functions associated with the processing of these bonds. To carry out the statute, we make a reasonable determination of the costs that Department incurs in processing the bonds. In essence, the cost to Customs is based upon an estimate of the time that a GS-9, Step 5 employee spends on each entry, which Customs has judged to be 20 minutes.
When the fee schedule was last amended, we projected General Schedule salary raises to be effective in January 2011 and 2012. Based on our projections over the next two fiscal years, we are decreasing the processing fee by $0.84, from $9.93 per bond to $9.09. This decrease reflects the fact that GS-9 salaries have been frozen since we last amended the fee schedule in 2010. The $9.09 fee will more closely reflect the direct and indirect costs that are actually associated with processing the bonds.
In lieu of sureties on a DOT conformance bond, an importer may offer United States money, United States bonds (except for savings bonds), United States certificates of indebtedness, Treasury notes, or Treasury bills (collectively referred to as “cash deposits”) in an amount equal to the amount of the bond. 49 CFR 591.10(a). The receipt, processing, handling, and disbursement of the cash deposits that have been tendered by RIs cause the agency to consume a considerable amount of staff time and material resources. NHTSA has concluded that the expense incurred by the agency to receive, process, handle, and disburse cash deposits may be treated as part of the bond processing cost, which NHTSA is authorized to set a fee under 49 U.S.C. 30141(a)(3)(A). We first established a fee of $459 for each vehicle imported on and after October 1, 2008, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond.
The agency considered its direct and indirect costs in calculating the fee for the review, processing, handling, and disbursement of cash deposits submitted by importers and RIs in lieu of sureties on a DOT conformance bond. We are decreasing the fee from $514 to $495. The factors that the agency has taken into account in proposing the fee include time expended by agency personnel, the slight increase in overhead costs, and the reduction in projected salary costs based on the General Schedule salary freeze since January 2010.
Each RI is currently required to pay $17 per vehicle to cover the costs the agency incurs in reviewing a certificate of conformity. We have found that these costs have decreased from $17 to an average of $12 per vehicle. Although our overhead costs increased, the salary and benefit costs are less than our previous projections based on the General Schedule salary freeze. The number of certificates of conformity submitted for agency review has increased. This has decreased the agency's cost attributed to the review of each certificate of conformity. Based on these costs, we are decreasing the fee charged for vehicles for which a paper entry and fee payment is made, from $17 to $12, a difference
Errors in ABI entries not only eliminate any time savings, but also require additional staff time to be expended in reconciling the erroneous ABI entry information to the conformity data that is ultimately submitted. Our experience with these errors has shown that staff members must examine records, make time-consuming long distance telephone calls, and often consult supervisory personnel to resolve the conflicts in the data. We have calculated this staff and supervisory time, as well as the telephone charges, to amount to approximately $57 for each erroneous ABI entry. Adding this to the $6 fee for the review of conformity packages on automated entries yields a total of $63, representing no increase in the fee that is currently charged when there are one or more errors in the ABI entry or in the statement of conformity.
NHTSA is required under 49 U.S.C. 30141(e) to “review and make appropriate adjustments at least every 2 years in the amounts of the fees” relating to the registration of importers, the processing of bonds, and making decisions concerning the importation of nonconforming vehicles. The statute further requires the agency to “establish the fees for each fiscal year before the beginning of that year.” This final rule implements the statutory provisions. In the NPRM, we proposed to make this rule effective October 1, 2012, and did not receive any comments on this issue. Accordingly, the effective date of this final rule is October 1, 2012.
Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is not significant. Accordingly, the Office of Management and Budget has not reviewed this rulemaking document under Executive Order 12886. Further, NHTSA has determined that the rulemaking is not significant under Department of Transportation's regulatory policies and procedures. Based on the level of the fees and the volume of affected vehicles, NHTSA currently anticipates that the costs of the final rule would be so minimal as not to warrant preparation of a full regulatory evaluation. The action does not involve any substantial public interest or controversy. The rule will have no substantial effect upon State and local governments. There will be no substantial impacts upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the registered importer program, adopted on September 29, 1989, was prepared, and is available for review.
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601
The agency has considered the effects of this rulemaking under the Regulatory Flexibility Act, and certifies that the rules being adopted will not have a significant economic impact upon a substantial number of small entities.
The following is NHTSA's statement providing the factual basis for the certification (5 U.S.C. 605(b)). The adopted amendments will primarily affect entities that currently modify nonconforming vehicles and that are small businesses within the meaning of the Regulatory Flexibility Act; however, the agency has no reason to believe that these companies would be unable to pay the fees proposed by this action. In most instances, these fees would not be changed or be only modestly increased (and in some instances decreased) from the fees now being paid by these entities. Moreover, consistent with prevailing industry practices, these fees should be passed through to the ultimate purchasers of the vehicles that are altered and, in most instances, sold by the affected registered importers. The cost to owners or purchasers of nonconforming vehicles that are altered to conform to the FMVSS may be expected to increase (or decrease) to the extent necessary to reimburse the registered importer for the fees payable to the agency for the cost of carrying out the registration program and making eligibility decisions, and to compensate Customs for its bond processing costs.
Governmental jurisdictions will not be affected at all since they are generally neither importers nor purchasers of nonconforming motor vehicles.
NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rule does not have sufficient federalism implications to warrant either consultation with State and local officials or preparation of a federalism summary impact statement. The rule
Further, no consultation is needed to discuss the issue of preemption in connection with today's final rule. The issue of preemption can arise in connection with NHTSA rules in two ways.
First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision: “When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.” 49 U.S.C. 30103(b)(1). It is this statutory command that unavoidably preempts State legislative and administrative law, not today's rulemaking, so consultation is unnecessary.
Second, the Supreme Court has recognized the possibility of implied preemption: In some instances, State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of some of the NHTSA safety standards. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable.
NHTSA has considered the nature (e.g., the language and structure of the regulatory text) and purpose of today's final rule and does not foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption of state law, including state tort law.
NHTSA has analyzed this action for purposes of the National Environmental Policy Act. The action will not have a significant effect upon the environment because it is anticipated that the annual volume of motor vehicles imported through registered importers will not vary significantly from that existing before promulgation of the rule.
Pursuant to Executive Order 12988 “Civil Justice Reform,” the agency has considered whether the amendments adopted in this final rule will have any retroactive effect. NHTSA concludes that those amendments will not have any retroactive effect. Judicial review of the rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with the base year of 1995). Before promulgating a rule for which a written assessment is needed, Section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and to adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of Section 205 do not apply when they are inconsistent with applicable law. Moreover, Section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Because this final rule will not require the expenditure of resources beyond $100 million annually, this action is not subject to the requirements of Sections 202 and 205 of the UMRA.
Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. Part 594 includes collections of information for which NHTSA has obtained OMB Clearance No. 2127-0002, a consolidated collection of information for “Importation of Vehicles and Equipment Subject to the Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards,” approved through January 31, 2014. This final rule will not affect the burden hours associated with Clearance No. 2127-0002 because we are only adjusting the fees associated with participating in the registered importer program. The new fees that we are adopting will not impose new collection of information requirements or otherwise affect the scope of the program.
Executive Order 13045, “Protection of Children from Environmental Health and Safety Risks” (62 FR 19855, April 23, 1997), applies to any rule that (1) is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health, or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned rule is preferable to other potentially effective and reasonably feasible alternatives considered by us. This rulemaking is not economically significant and does not concern an environmental, health, or safety risk.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the agency to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs the agency to provide Congress, through the OMB, explanations when it decides not to use available and applicable voluntary consensus standards.
In this final rule, we are adjusting the fees associated with the registered importer program. We are making no substantive changes to the program nor did we adopt any technical standards. For these reasons, Section 12(d) of the NTTAA does not apply.
Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN that appears in the heading on the first page of this document to find this action in the Unified Agenda.
Imports, Motor vehicle safety, Motor vehicles.
In consideration of the foregoing, 49 CFR Part 594 is amended as follows:
49 U.S.C. 30141, 31 U.S.C. 9701; delegation of authority at 49 CFR 1.50.
(a) Each person filing an application to be granted the status of a Registered Importer pursuant to part 592 of this chapter on or after October 1, 2012, must pay an annual fee of $805, as calculated below, based upon the direct and indirect costs attributable to:
(b) That portion of the initial annual fee attributable to the processing of the application for applications filed on and after October 1, 2012, is $330. The sum of $330, representing this portion, shall not be refundable if the application is denied or withdrawn.
(d) That portion of the initial annual fee attributable to the remaining activities of administering the registration program on and after October 1, 2012, is set forth in paragraph (i) of this section. * * *
(h) * * * This cost is $21.66 per man-hour for the period beginning October 1, 2012.
(i) Based upon the elements and indirect costs of paragraphs (f), (g), and (h) of this section, the component of the initial annual fee attributable to administration of the registration program, covering the period beginning October 1, 2012, is $475. When added to the costs of registration of $330, as set forth in paragraph (b) of this section, the costs per applicant to be recovered through the annual fee are $805. The annual renewal registration fee for the period beginning October 1, 2012, is $676.
(e) For petitions filed on and after October 1, 2012, the fee payable for seeking a determination under paragraph (a)(1) of this section is $175. * * *
(b) If a determination has been made pursuant to a petition, the fee for each vehicle is $101. * * *
(c) If a determination has been made on or after October 1, 2012, pursuant to the Administrator's initiative, the fee for each vehicle is $125. * * *
(c) The bond processing fee for each vehicle imported on and after October 1, 2012, for which a certificate of conformity is furnished, is $9.09.
(e) The fee for each vehicle imported on and after October 1, 2012, for which cash deposits or obligations of the United States are furnished in lieu of a conformance bond, is $495.
6. Amend § 594.10 by revising the first sentence of paragraph (d) to read as follows:
(d) The review and processing fee for each certificate of conformity submitted on and after October 1, 2012 is $12. * * *