Schedule of Fees Authorized by 49 U.S.C. 30141

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Final rule.

SUMMARY:

This document adopts fees for Fiscal Year (FY) 2005 and until further notice, relating to the registration of importers and the importation of motor vehicles not certified as conforming to the Federal motor vehicle safety standards (FMVSS).

DATES:

The amendments established by this final rule will become effective on October 1, 2004, the beginning of FY 2005. Petitions for reconsideration must be received by NHTSA not later than November 12, 2004.

ADDRESSES:

Petitions for reconsideration should refer to the docket and notice numbers above and be submitted to the Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590, with a copy to the docket. You may provide a copy of your petition by any of the following methods:

• Web site: http://dms.dot.gov . Follow the instructions for submitting comments on the DOT electronic docket site. Please note, if you are submitting petitions electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions. Please also note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov .
• Fax: 1-202-493-2251.
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am and 5 pm, Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov .

FOR FURTHER INFORMATION CONTACT:

For non-legal issues: Coleman Sachs, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590 (202-366-5291). For legal issues: Michael Goode, Office of Chief Counsel, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590 (202-366-5263).

SUPPLEMENTARY INFORMATION:

A. Introduction

The amendments we are adopting in this rule increase the fees for the registration of a new registered importer (RI) from $655 to $830 and the annual fee for renewing an existing registration from $455 to $745. These fees include the costs of maintaining the RI program. We are also increasing, from $550 to $827, the fee for inspecting a vehicle that is the subject of an import eligibility petition when we are asked to conduct such an inspection by the petitioner. The fee required to reimburse the U.S. Department of Homeland Security (Customs) for conformance bond processing costs will increase from $6.20 to $9.30 per bond. We are also increasing the fees assessed against the importer of each vehicle covered by the decision to grant import eligibility. For vehicles determined eligible based on their substantial similarity to a U.S. certified vehicle, the fee is increased from $105 to $150. For vehicles determined eligible based on their capability of being modified to comply with all applicable FMVSS, the fee is increased from $125 to $150. The fee that a RI must pay as a processing cost for review of each conformity package that it submits to NHTSA will remain at $18 per certificate. If the vehicle has been entered electronically with Customs through the Automated Broker Interface and the registered importer has an e-mail address, the fee for processing the conformity package will continue to be $6, provided the fee is paid by credit card. However, if NHTSA finds that the information in the entry or the conformity package is incorrect, the processing fee will increase from $18 to $48.

This rule was preceded by a notice of proposed rulemaking (NPRM) that NHTSA published in the Federal Register on June 9, 2004 (69 FR 32312). The National Traffic and Motor Vehicle Safety Act, as amended by the Imported Vehicle Safety Compliance Act of 1988, and recodified as 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 determinations, 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 at 61 FR 32411 that discussed the rulemaking history of 49 CFR Part 594 and the fees authorized by the Act. The reader is referred to that notice for background information relating to this rulemaking action.

We last amended the fee schedule in 2002. See final rule published on September 26, 2002, at 67 FR 60596 (corrected on October 9, 2002, at 67 FR 62897). Those fees applied to Fiscal Years 2003 and 2004.

The fees adopted by this final rule are based on actual time and costs associated with the tasks for which the fees are assessed and reflect the slight increase in hourly costs in the past two fiscal years attributable to the approximately 4.27 and 4.42 percent raises (including the locality adjustment for Washington, D.C.) in salaries of employees on the General Schedule that became effective on January 1, 2003, and on January 1, 2004, respectively.

B. Comments

Two comments were submitted in response to the notice of proposed rulemaking. The first of these was from Ms. Barb Sachau. In her comments, Ms. Sachau expressed the opinion that the proposed fees should cover the entire costs of the RI program and that taxpayers should not be burdened with any share of those costs. Ms. Sachau generally recommended that the RI program fees be tripled. She also specifically proposed an increase in the fee for reviewing certificates of conformity to a minimum of $200, and an increase in the fee for a vehicle inspection to $2,127. Ms. Sachau also recommended that an importer who petitions the agency to determine a vehicle eligible for importation should pay all costs associated with processing the petition, rather than sharing those costs with the importers of the vehicle.

Ms. Sachau's concern that taxpayers should not be burdened with the costs of the RI program is consistent with the statute on which the program is based and the manner in which it is conducted by NHTSA. Section 30141(a)(3) of Title 49, U.S. Code requires registered importers to pay “for the costs of carrying out the registration program * * * and any other fees the Secretary of Transportation establishes to pay for the costs of (A) processing bonds * * * and (B) making [import eligibility] decisions * * *” As reflected in the agency's regulations at 49 CFR 594.2, the purpose of these fees is “to ensure that NHTSA is reimbursed for costs incurred in administering the RI program” and carrying out associated functions.

Ms. Sachau did not provide the calculations that served as the basis for her proposal to triple the RI program fees, and the specific amounts that she recommended for reviewing certificates of conformity and performing vehicle inspections. In preparing the NPRM, we calculated the costs incurred in administering the RI program and proposed fees that would reimburse the Federal government for its actual expenses.

To avoid burdening a single RI with all costs associated with making an import eligibility decision, NHTSA decided in 1990 to allocate those costs, on a pro rata basis, among all RIs who import the vehicle to which the decision relates. In that manner, the agency's costs for making an import eligibility decision are borne in part by the petitioner and in part by the importers of vehicles imported under the petition. This approach accomplishes what Ms. Sachau desires in that it provides ample means for the agency to recover the costs incurred for the eligibility decisions that it makes.

The second comment was submitted by Mr. Jeffrey A. Beyer, Vice President, BCB International, Incorporated, a Customs Broker in Buffalo, New York. Mr. Beyer objected to the proposed fee increase for processing a conformity package in situations where an error is committed in submitting information through the Automated Broker Interface (ABI). Mr. Beyer stated that when an RI is charged increased fees for such an error, the RI, in turn, expects to be compensated for the extra fee by the Customs Broker who made the entry. Mr. Beyer expressed the belief that it is unfair to increase the fees in this circumstance because no mechanism is presently available in the Customs ABI system to correct or update an entry.

Mr. Beyer's concerns relate to his business dealings with Customs and the ABI system that Customs controls. While we are sensitive to Mr. Beyer's professed inability to correct or update an entry made into the Customs software, once an error is made, NHTSA must expend a considerable amount of additional effort to correct the entry. These efforts result in significantly greater costs to the agency. Consistent with the statutory requirement for the agency to recover the actual costs it incurs in administering the RI program, it is entirely appropriate for NHTSA to increase its fee for processing submissions in which errors are made.

C. Requirements of the Fee Regulation

Section 594.6—Annual Fee for Administration of the Importer Registration Program.

Section 30141(a)(3) of Title 49, U.S. Code provides that RIs must pay the annual fee the Secretary of Transportation establishes “* * * 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(e)).

In compliance 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 decrease this fee from $395 to $293 for new applications. We have also determined that the fee for the review of the annual statement will be increased from $195 to $208. These fee adjustments reflect our time expenditures in reviewing both new applications and annual statements with accompanying documentation, as well as the inflation factor attributable to Federal salary increases and locality adjustments in the two years since the regulation was last amended.

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 $537 for each RI, an increase of $277. When this $537 is added to the $293 representing the registration application component, the cost to an applicant comes to $830, which is the fee we are adopting. This represents an increase of $186 over the existing fee. When the $537 is added to the $208 representing the annual statement component, the total cost to the RI comes to $745, which represents an increase of $290.

Section 594.6(h) enumerates indirect costs associated with processing the annual renewal of RI registrations. The provision states that these costs represent a pro rata allocation of the average salary and benefits of employees who process the annual statements and perform related functions, and “a pro rata allocation of the costs attributable to maintaining the office space, and the computer or word processor.” The indirect costs that were previously calculated at $14.85 per man-hour are being increased by $5.22, to $20.07.

Sections 594.7 and 594.8—Fees To Cover Agency Costs in Making Importation Eligibility Determinations

Section 30141(a)(3) also requires registered importers to pay other fees the Secretary of Transportation establishes to cover the costs of “* * * (B) 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 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 pro rata share of the costs in making all the eligibility determinations in a fiscal year.

Inflation and General Schedule raises must also be taken into account in the computation of costs. We have reduced processing costs through issuing a single Federal Register notice to announce import eligibility decisions made on multiple vehicles and achieved other efficiencies through improved computerization methods. Despite the cost savings that have accrued from these practices, we have had to devote an increasing share of staff time in the past two years to the review and processing of import eligibility petitions owing to a proportionately greater number of comments being submitted in response to these petitions, as well as complications that result when the petitioner or one or more commenters request confidentiality for information they submit to the agency. Additional staff time is also needed to analyze the petitions and any comments received owning to new requirements being adopted in the FMVSS. Despite the additional resources that are needed to review import eligibility petitions, we are not increasing the current fee of $175 that covers the initial processing of a “substantially similar” petition. Instead, as discussed below, we are addressing these additional costs by increasing the pro-rata share of petition costs that are assessed against the importer of each vehicle covered by the decision to grant import eligibility. 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 increase to $827 from $550 for vehicles that are the subject of either type of petition. This $277 increase reflects current per diem and airfare costs.

Importers of vehicles determined to be eligible for importation pay, upon the importation of those vehicles, a pro-rata share of the total cost for making the eligibility decision. 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 VSA Nos. 80-83, for which no eligibility decision fee is assessed), the fee will remain $125. NHTSA determined that the costs associated with previous eligibility determinations on the agency's own initiative were fully recovered by October 1, 2000. We 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, 2000.

The agency's costs for making an import eligibility decision pursuant to a petition are borne in part by the petitioner and in part by the importers of vehicles imported under the petition. In 2003, the most recent year for which complete data exists, the agency expended over $99,000 in making import eligibility decisions based on petitions. The petitioners paid nearly $9,000 of that amount in the processing fees that accompanied the filing of their petitions, leaving the remaining $90,000 to be recovered from the importers of the nearly 600 vehicles imported that year pursuant to petition-based import eligibility decisions. Dividing $90,000 by 600 yields a pro-rata fee of $150 for each vehicle imported pursuant to an eligibility decision that resulted from the granting of a petition. The agency is proposing this as the pro-rata fee to be paid by the importer of each such vehicle. The same $150 fee would be paid regardless of whether the vehicle was petitioned under 49 CFR 593.6(a), based on the substantial similarity of the vehicle to a U.S.-certified model, or was petitioned under 49 CFR 593.6(b), based on the safety features of the vehicle complying with, or being capable of being modified to comply with all applicable FMVSS. This represents an increase of $45 over the $105 that is currently paid by the importers of vehicles determined eligible based on their substantial similarity to a U.S.-certified vehicle, and an increase of $25 over the $125 that is currently paid by the importers of vehicles determined eligible based on their capability of being modified to comply.

Section 594.9—Fee To Recover the Costs of Processing the Bond

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 will 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.

Customs now exercises the functions associated with the processing of these bonds. The statute contemplates that we will make a reasonable determination of the cost that Customs 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.

Based on General Schedule salary and locality raises that were effective in January 2003 and 2004 and the inclusion of costs for benefits that were previously omitted, we are increasing the processing fee by $3.10, from $6.20 per bond to $9.30. This fee would more closely reflect the direct and indirect costs that are actually associated with processing the bonds.

Section 594.10—Fee for Review and Processing of Conformity Certificate

Each RI is currently required to pay $18 per vehicle to cover the costs the agency incurs in reviewing a certificate of conformity. We have found that these costs continue to average $18 per vehicle for vehicles for which a paper entry and fee payment is made, and we therefore are not changing this fee. However, if a RI enters a vehicle through the Automated Broker Interface (ABI) system, has an e-mail address to receive communications from NHTSA, and pays the fee by credit card, the cost savings that we realize allow us to significantly reduce the fee to $6.00. We are maintaining the fee of $6.00 per vehicle if all the information in the ABI entry is correct. Errors in ABI entries not only eliminate any timesavings, but also require additional staff time to be expended in reconciling the erroneous ABI entry information to the conformity data that is ultimately submitted. Recent 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 $42 for each erroneous ABI entry. Adding this to the $6 fee for the review of conformity packages on automated entries yields a total of $48, representing a $30 increase over the fee that is currently charged when there are errors to resolve in the entry or in the statement of conformity. We are adopting this $48 fee to review each conformity package for which there are one or more errors in the ABI entry or in the statement of conformity.

Effective Date

NHTSA is required under 49 U.S.C. 30141(e) to “review and make appropriate adjustments at least every 2 years in the amounts of the fees” relating to the registration of importers, the processing of bonds, and making decisions concerning the importation of nonconforming vehicles. The statute further requires the agency to “establish the fees for each fiscal year before the beginning of that year.” Fiscal year 2005 begins on October 1, 2004. In the NPRM, we proposed to make this rule effective October 1, 2004, and did not receive any comments on this issue. In order to meet the statutory deadline, the agency finds under 5 U.S.C. 553(d)(3) that it has good cause to make this final rule effective less than thirty days after its publication in the Federal Register. Accordingly, the effective date of this final rule is October 1, 2004.

Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

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 will be so minimal as not to warrant preparation of a full regulatory evaluation. The action does not involve any substantial public interest or controversy. There will be no substantial effect upon State and local governments. There will be no substantial impact upon a major transportation safety program. A regulatory evaluation analyzing the economic impact of the final rule establishing the registered importer program, adopted on September 29, 1989, was prepared, and is available for review in the docket.

B. Regulatory Flexibility Act

The agency has also considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I certify that this action 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 amendments adopted in this final rule will primarily affect entities that currently modify nonconforming vehicles and which are small businesses within the meaning of the Regulatory Flexibility Act; however, the agency has no reason to believe that these companies will face significant problems paying the fees adopted as a result of this action. In most instances, these fees will be only modestly increased (and in some instances decreased) from the fees previously 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.

C. Executive Order 13132 (Federalism)

Executive Order 13132 on “Federalism” requires NHTSA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” Executive Order 13132 defines the term “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, NHTSA may not issue a regulation that has federalism implication, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or NHTSA consults with State and local officials early in the process of developing the proposed regulation.

The amendments adopted in this rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rulemaking action.

D. National Environmental Policy Act

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

E. Executive Order 12778 (Civil Justice Reform)

This rule will not have any retroactive or preemptive effect. Judicial review of this rule may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review.

F. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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). Because this final rule will not require the expenditure of resources beyond $100 million annually, no Unfunded Mandates assessment has been prepared.

G. Plain Language

Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

—Have we organized the material to suit the public's needs?

—Are the requirements in the proposed rule clearly stated?

—Does the proposed rule contain technical language or jargon that is unclear?

—Would a different format (grouping and order of sections, use of heading, paragraphing) make the rule easier to understand?

—Would more (but shorter) sections be better?

—Could we improve clarity by adding tables, lists, or diagrams?

—What else could we do to make the rule easier to understand?

No responses to these questions were included in the comments submitted on the notice of proposed rulemaking. We have endeavored to abide by these principles in the preparation of this final rule.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule requires no information collections.

I. Executive Order 13045

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

List of Subjects in 49 CFR Part 594

• Imports
• Motor vehicle safety
• Motor vehicles

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

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

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

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

2. Section 594.6 is amended by;

a. Revising the introductory text of paragraph (a);

b. Revising paragraph (b);

c. Revising paragraph (d);

d. Revising the final sentence of paragraph (h); and

e. Revising paragraph (i) to read as follows:

3. Section 594.7 is amended by revising paragraph (e) to read as follows:

4. Section 594.8 is amended by revising paragraph (b) and by revising the first sentence of paragraph (c) to read as follows:

5. Section 594.9 is amended by revising paragraph (c) to read as follows:

6. Section 594.10 is amended by revising paragraph (d) to read as follows: