NHTSA Denies Reconsideration/Stay of October 2005 Final Rule on Registered Importers of Motor Vehicles, Etc.

In addition, NHTSA has denied a petition for an emergency stay of the November 3, 2005 effective date of this final rule.

Petitioners Contend that Only Original Manufacturer Can Certify Compliance

In October 2005, NHTSA issued a final rule which, among other things, requires that RIs certify for each nonconforming vehicle that they import that either the vehicle is not required to comply with the parts marking requirements of the Theft Prevention Standard or that the vehicle complies with those requirements as manufactured, or as modified prior to importation.

According to NHTSA, the National Insurance Crime Bureau's (NICB's) petition objected to this provision of the October 2005 final rule based on the contention that NHTSA has no authority to allow any entity other than the original manufacturer to certify compliance with the Theft Prevention Standard. NHTSA states that by observing that the Theft Act provides for enforcement against manufacturers, NICB suggests that the October 2005 final rule leaves NHTSA without enforcement authority. The petition requests that this provision, located at 49 CFR 592.6(d)(1)(ii), be repealed.

(49 CFR 592.6 pertains to the duties of an RI and paragraph (d) outlines the certifications that must be made for each motor vehicle. 49 CFR 592.6(d)(1)(i)-(ii) provides that the RI will certify, among other things and as appropriate, that either: (i) the vehicle is not required to comply with the parts marking requirements of the theft prevention standard (49 CFR Part 541); or (ii) the vehicle complies with those parts marking requirements as manufactured, or as modified prior to importation.)

NICB contends that allowing RIs to certify such compliance will result in a proliferation of stolen vehicles entering the U.S., causing financial loss and increased highway deaths and injuries. The North American Export Committee also filed a petition in support of NICB's petition.

In denying this petition, NHTSA states that most of the arguments raised by NICB were rejected in 1985, when the Theft Prevention Standard was adopted. NHTSA explains that the definition of "manufacturer" includes persons involved in manufacturing and assembling vehicles and importers of vehicles for resale. Thus, as the term "manufacturer" includes importers, NHTSA states that the government has more than ample enforcement authority, including inspection of imported vehicles, revocation of an RI's license, and fines and penalties for noncompliance.

NHTSA states that NICB's policy arguments ignore the fact that for 20 years vehicles not originally manufactured to comply with the Theft Prevention Standard have been allowed entry into the U.S. after being conformed to that standard.

NHTSA Rejects Petition for Emergency Stay of Final Rule

In addition to the above-detailed petition, NICB filed a petition for an emergency stay of the October 2004 final rule's effective date (November 3, 2005). NICB asserted that the American public and importers will suffer irreparable harm and asked that NHTSA stay the effective date until it had considered the petition described above. NHTSA states that this is moot and denies the petition for an emergency stay.

The Motor Vehicle Theft Law Enforcement Act of 1985 (Theft Act) added Title VI ("Theft Prevention") to the Motor Vehicle Information and Cost Savings Act. The Theft Act required the Secretary of Transportation to issue rules to address the problem of vehicle theft. As a result, the Theft Prevention Standard, 49 CFR Part 541, was promulgated by NHTSA in 1985

(See ITT's Online Archives or 10/07/05 news, 05100730, for BP summary of NHTSA's October 2005 final rule. See ITT's Online Archives or 08/26/04 news, 04082615, for BP summary of an August 2004 final rule which amended certain RI requirements and procedures and was amended by the October 2005 final rule.)

NHTSA notice (D/N NHTSA-2000-8159, Notice 4, FR Pub 03/03/06) available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-2003.pdf