[Federal Register: July 8, 2008 (Volume 73, Number 131)]
[Notices]
[Page 39078-39088]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08jy08-141]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA 2008-0113; Notice 1]
Request for Public Comments on Guidance and Recommended Best
Importer Practices To Enhance the Safety of Imported Motor Vehicles and
Motor Vehicle Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Request for public comments.
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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.
DATES: You should submit your comments early enough to ensure that
Docket Management receives them not later than August 7, 2008.
ADDRESSES: Comments should refer to the docket and notice numbers above
and be submitted by any of the following methods:
Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
Instructions: For detailed instructions on submitting comments, see
the Public Participation heading of the Supplementary Information
section of this document. Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading
below.
Privacy Act: 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 (65 FR 19477-78) or you may visit http://
DocketInfo.dot.gov.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov and follow the
online instructions for accessing the docket or visit the docket at the
street address listed above.
FOR FURTHER INFORMATION CONTACT: Clint Lindsay, Office of Vehicle
Safety Compliance, National Highway Traffic Safety Administration, 1200
New Jersey Avenue, SE., Washington, DC 20590 (202-366-5288).
SUPPLEMENTARY INFORMATION:
I. Background
A. 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 ever-increasing
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 Report--Strategic 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 cost-effective, risk-based approach that
has the following key principles:
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\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.
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(1) Prevention--Prevent 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) Intervention--Intervene 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 point-of-entry; and
(3) Response--Respond 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 Group--Action 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 above--Prevention, 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.
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\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. 20-21.
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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:
Fully Understand the Importer's Obligations under Motor
Vehicle Safety Statutes and Regulations;
Exercise Great Care in Selecting Foreign Manufacturers;
Inspect Foreign Manufacturing Facilities;
Inspect Goods Either Before They Are Exported to or
Distributed in the United States;
Identify the Product's Country of Origin;
Establish a Consumer Service Program;
Contact NHTSA Concerning Manufacturer/Importer Reporting
Requirements, Safety Compliance, and Defect Issues; and
General Assistance with Federal Regulations.
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 self-addressed, 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, (NCC-111), Room W41-227, 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 drop-down menu in the Agency field, enter the
Docket ID number and title shown at the heading of this document, and
select ``NOTICES'' from the drop-down 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. 07-02 on ``Agency Good Guidance Practices.'' The primary
focus of E.O. 13422 and OMB Bulletin No. 07-02 is to improve the way
the Federal government does business with respect to guidance
documents--by increasing their quality, transparency, accountability,
and coordination.
Both Executive Order 13422 and OMB Bulletin No. 07-02 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. 07-02.
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 07-02. 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 user-friendly 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:
Have we organized the material to suit the public's needs?
Does this document contain technical language or jargon
that is not clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make this document 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 this document easier to
understand?
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 on-road 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\
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\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.
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(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:
Buses;
low-speed vehicles;
motorcycles;
multipurpose passenger vehicles;
passenger cars;
trailers; and
trucks.
The following motor vehicle equipment items are also subject to the
FMVSS:
Tires;
rims;
brake hoses;
brake fluid;
seat belt assemblies;
lamps, reflective devices, and associated equipment;
glazing (automotive glass and plastics);
motorcycle helmets;
child restraint systems (child safety seats);
platform lift systems for the mobility impaired;
rear impact guards for trailers;
triangular reflective warning devices, and;
compressed natural gas containers.
The Vehicle Safety Act requires manufacturers to certify that motor
vehicles and regulated items of motor vehicle equipment they produce
for sale in the United States comply with all applicable FMVSS. See 49
U.S.C. 30115. Motor vehicle equipment items that are not subject to the
FMVSS do not require certification; however, such items may be found
(by either NHTSA or the manufacturer) to have a safety-related defect,
and if so, the manufacturer will have an obligation to furnish owners
of the equipment with notification of, and a remedy for, the defect,
usually at no charge to the consumer.
Type approval \5\ is not required for motor vehicles and motor
vehicle equipment sold in the United States. NHTSA does not issue type
approval certifications and does not certify any motor vehicles or
motor vehicle equipment as complying with applicable FMVSS. Instead, we
have a ``self-certification'' process, which places responsibility on
the fabricating manufacturer to certify the vehicle or equipment item
as complying with the applicable FMVSS. Self-certification reduces the
cost and time associated with lengthy, government-mandated testing that
is required under type approval. Self-certification also reduces
regulatory costs and facilitates international trade because it allows
manufacturers to quickly bring to market vehicles and equipment items
that incorporate safety and technology advancements.
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\5\ In many countries, before motor vehicles or motor vehicle
equipment items may be sold to consumers, the fabricating
manufacturer must prove that these items comply with safety
regulations and receive pre-approval from a government agency. This
approach is commonly referred to as ``type approval.'' Under type
approval, a manufacturer submits production samples and
specifications to an approved laboratory and if the product complies
with the standards, the government issues a type approval
certificate of compliance. Because this can take many months, the
manufacturer begins the process of obtaining type approval well in
advance of bringing the product to market. After type approval is
granted, the manufacturer ensures that each vehicle or equipment
item is produced in conformance with the specifications that were
submitted for approval. If countries enter into international
agreements covering vehicle safety regulations, one country's type
approval may be valid for another member country. For example, the
Vehicle Certification Agency, an Executive Agency of the United
Kingdom Department for Transport, administers type approval in the
U.K. See: http://www.vca.gov.uk/index.asp.
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The Vehicle Safety Act requires the manufacturer to exercise
``reasonable care'' when issuing its certification. See 49 U.S.C.
30115. To this end, NHTSA encourages manufacturers to conduct tests in
accordance with the tests specified in the FMVSS. See 49 CFR part 571.
(b) Noncompliance with a FMVSS or a Safety-Related Defect
Notwithstanding the certification of a product, a manufacturer may
subsequently determine that a safety-related defect or a noncompliance
with a FMVSS exists in a motor vehicle or a motor vehicle equipment
item it has produced. Manufacturers have a duty to notify NHTSA if they
learn the vehicle or equipment contains a defect and in good faith they
decide that the defect is related to motor vehicle safety, or in good
faith they decide that the vehicle or equipment does not comply with an
applicable FMVSS. See 49 U.S.C. 30118(c). The manufacturer must notify
NHTSA within five working days after determining the existence of a
safety-related defect or noncompliance. See 49 CFR 573.6. Alternately,
NHTSA may determine the existence of a safety-related defect or
noncompliance in a particular motor vehicle or motor vehicle equipment
item and order manufacturers to recall those items. See 49 U.S.C.
30118(b).
(c) Notification and Remedy for a Safety-Related Defect or
Noncompliance
Regardless of whether the safety-related defect or noncompliance
with an FMVSS is determined to exist by the manufacturer or by NHTSA,
the manufacturer must provide NHTSA, as well as owners and dealers of
the affected products, with notification of the defect or noncompliance
and must remedy the defect or noncompliance, usually without charge.
The notification and remedy process is commonly referred to as a
``safety recall campaign'' or more simply as a ``recall.'' There is a
limited exception under which a manufacturer that has reported a
noncompliance to NHTSA may petition the agency for a determination that
the noncompliance is inconsequential as it relates to motor vehicle
safety.\6\ See 49 CFR part 556. NHTSA monitors the remedy program to
ensure its successful completion. The agency is not authorized to
expend its funds on recalls; the expense of notifying owners and
providing a remedy must be borne by the manufacturer and/or importer of
the products found to contain the defect or noncompliance. See 49
U.S.C. 30118-30120.
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\6\ The National Traffic and Motor Vehicle Safety Act of 1966
gives NHTSA the authority to exempt manufacturers from the
requirement to provide notification and remedy for safety-related
defects or noncompliances if the agency determines that the defect
or noncompliance is inconsequential as it relates to motor vehicle
safety. See 49 U.S.C. 30118, 30120. The procedures for implementing
this statutory authority are set forth in 49 CFR part 556, Exemption
for Inconsequential Defect or Noncompliance.
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(d) Importers' Recall Obligations
Under the Vehicle Safety Act, importers of motor vehicles and motor
vehicle equipment for resale are considered ``manufacturers.'' See 49
U.S.C. 30102(a)(5). Therefore, importers must recognize that they have
obligations under the Vehicle Safety Act, which continue after motor
vehicles or items of motor vehicle equipment are sold to consumers
within the United States. If an importer becomes aware that a vehicle
or equipment item it has imported contains a defect related to motor
vehicle safety or does not comply with an applicable FMVSS, it must
provide NHTSA, as well as owners and dealers of the affected vehicles
or equipment, with notification of the defect or noncompliance and must
remedy the defect or noncompliance, usually without charge. An importer
also has notification and remedy responsibility if NHTSA determined the
existence of the defect or noncompliance and ordered it to undertake a
notification and remedy campaign.
If a fabricating manufacturer is not located in the United States
and does not conduct business operations in this country, including
through a subsidiary or other controlled entity, the U.S. judicial
system likely will not be able to effectively compel the foreign
[[Page 39083]]
manufacturer to conduct a recall. In that case, the burden of providing
notification to owners and dealers and a free remedy will fall solely
upon the importer, unless the fabricating manufacturer voluntarily
supports the recall.
(e) NHTSA Defect Investigations
In addition to the actions of the manufacturers and importers in
recalling noncompliant and defective motor vehicles and motor vehicle
equipment, NHTSA investigates suspected noncompliances and safety-
related defects in motor vehicles and motor vehicle equipment items.
Before initiating an investigation of a suspected safety-related
defect, NHTSA ordinarily reviews consumer complaints that are submitted
to the agency and other available information to determine whether a
defect trend exists. Among the other information the agency reviews is
Early Warning Reporting (EWR) information submitted by manufacturers
under regulations issued pursuant to the Transportation Recall
Enhancement, Accountability, and Documentation (TREAD) Act of 2000.
These regulations require manufacturers, including by definition,
importers, to submit information that could assist the agency in
determining whether a safety-related defect exists in a vehicle or in
specified items of motor vehicle equipment. See 49 CFR part 579,
subpart C. Under the EWR rules, manufacturers must generally report
claims they receive on incidents resulting in fatalities or injuries
allegedly caused by a defect in their vehicles or motor vehicle
equipment items used in the United States or deaths allegedly caused by
a defect in their identical or substantially similar vehicles or
equipment used in a foreign country. Moreover, depending on the level
of annual production and the type of product, manufacturers may also be
required to provide NHTSA with information on production, property
damage claims, consumer complaints, warranty claims, field reports, as
well as other information.
(f) Compliance Needed to Import Motor Vehicles and Equipment
As part of its safety mandate, NHTSA monitors motor vehicles and
items of motor vehicle equipment that are imported into the United
States for compliance with applicable FMVSS. To be imported free of
restriction, a motor vehicle less than 25 years old must be originally
manufactured to comply with all applicable FMVSS and bear a label
certifying such compliance that is permanently affixed by the vehicle's
original (i.e. ``fabricating'') manufacturer. To be lawfully imported,
a new or used item of motor vehicle equipment that is subject to an
FMVSS must, as originally manufactured, conform to the standard and be
so certified by its original manufacturer. See 49 U.S.C. 30112 and
30115. As noted above, items of motor vehicle equipment that are
subject to the FMVSS include tires, rims, brake hoses, brake fluid,
seat belt assemblies, lamps, reflective devices, and associated
equipment, glazing (automotive glass and plastics), motorcycle helmets,
child restraint systems (child safety seats), platform lift systems for
the mobility impaired, rear impact guards for trailers, triangular
reflective warning devices, and compressed natural gas containers. In
most instances, the manufacturer's certification of compliance with the
applicable FMVSS for regulated safety equipment is evidenced by the
symbol ``DOT'' either inscribed on the equipment item in a prescribed
location, or placed on the outside of the container in which the
equipment item is shipped.
As previously noted, NHTSA has authority to investigate possible
safety-related defects in a motor vehicle equipment item regardless of
whether the item is subject to the FMVSS. When an item is subject to a
FMVSS, compliance with the standard does not ensure that the item is
free of a safety-related defect. NHTSA investigates numerous vehicles
and items of equipment each year for possible defects.
(g) Procedural Requirements for Fabricating Manufacturers
Before offering a vehicle or motor vehicle equipment item for sale
in the United States, the fabricating manufacturer must: (1) Designate
a U.S. resident as its an agent for service of process if the
manufacturer is not located in the United States (49 CFR part 551,
Subpart D Service of Process on Foreign Manufacturers and Importers)
and (2) submit to NHTSA identifying information on itself and the
products it manufactures to the FMVSS, not later than 30 days after the
manufacturing process begins (49 CFR part 566 Manufacturer
Identification). The fabricating manufacturer of a motor vehicle must
also submit to NHTSA information the agency will need to decipher the
manufacturer's vehicle identification number or ``VIN'' format not
later than 60 days prior to offering the first vehicle for sale in the
United States (49 CFR part 565 Vehicle Identification Number
Requirements). The manufacturer of certain regulated equipment items
such as brake hoses, glazing (automotive glass and plastics), and tires
must label its products with identification numbers assigned to the
manufacturer by NHTSA.\7\
---------------------------------------------------------------------------
\7\ See 49 CFR 571.106, paragraph S5.2.2(b), relating to brake
hoses; 49 CFR 571.205, paragraph S6.2, relating to glazing; and 49
CFR 574.5, relating to tires.
---------------------------------------------------------------------------
(h) Penalties
Manufacturers and importers may be subject to substantial civil
penalties for failure to meet the requirements of the statutes and
regulations that NHTSA administers. See 49 U.S.C. 30165. Currently,
those penalties can be as high as $6,000 for each violation with a
maximum of $16,375,000 for a related series of violations. See 49 CFR
part 578.
(2) Exercise Great Care in Selecting Foreign Manufacturers
International trade presents unique risks. A company engaged in
importing foreign manufactured goods or considering becoming an
importer should have a complete and detailed business plan. The plan
should reflect careful consideration of the following questions:
Who will determine the specifications for the product?
On what basis will the product specifications be
developed?
Who will design the product?
Who will verify the product's design?
What laboratory and field tests will be undertaken?
Who will test product prototypes?
What entity will fabricate various parts?
What manufacturing quality control will be undertaken?
How will manufacturing quality control be maintained?
How often will products be tested to ensure continued
compliance with the FMVSS?
What documentation will be generated?
What documentation will be maintained?
Who will maintain the documentation?
Who will check the documentation?
Compliance with FMVSS is only a part of the considerations. Motor
vehicles operate in harsh conditions over many miles and some abuse
must be assumed; therefore, avoidance of safety-related defects is
critical.
Selecting a capable and responsible overseas business partner is
one of the best ways to minimize risks. Before selecting a business
partner in another country, it is wise to investigate the
[[Page 39084]]
supplier's reputation using readily available public source information
(such as the Internet) or, if possible, by interviewing other customers
of the supplier. It is advisable for a prospective importer to check
many references and not to limit its inquiries to references that the
prospective supplier identifies. If the country in which a manufacturer
is located has an established government agency to oversee product
safety, that agency's public records may contain useful information on
the company's history of recalls and regulatory compliance. Importers
may also wish to consider requesting the potential supplier's catalogs
and sample products for evaluation. The U.S. Department of Commerce
also offers an International Company Profile Report that may assist
importers in evaluating potential foreign partners. This report
summarizes the financial strength of a company and provides useful
information gleaned from the local press, industry contacts, and other
sources. More information about this service is available on the
Department of Commerce Web site. See http://www.export.gov/
salesandmarketing/ICP.asp.
At a minimum, it is prudent for importers to use existing sources
of information to ensure that they will purchase, import, distribute,
and sell motor vehicles and motor vehicle equipment items subject to
the FMVSS that are produced by foreign manufacturers who:
1. Properly identify themselves and their products to NHTSA (49 CFR
part 566);
2. designate a U.S. resident as their agent for service of process
(49 CFR part 551, subpart D);
3. furnish NHTSA with VIN-deciphering information (if they
manufacture ``motor vehicles'') (49 CFR part 565); and
4. certify their products as complying with all applicable FMVSS
and so label their products (49 U.S.C. 30115).
It would be advisable for the importer to focus on the
specifications for and design of the product and the requirements of
all applicable FMVSS covering the product that it wishes to import
before beginning negotiations with a prospective overseas business
partner. The importer should be well informed about U.S. import
regulations and any FMVSS requirements that cover the products the
importer intends to import. Before discussions take place with a
prospective manufacturer, it may be worthwhile for the importer to have
translated into the language used by that manufacturer the FMVSS that
are applicable to the product and the agency regulations pertaining to
manufacturers located outside the United States. It is reasonable to
discuss with the prospective manufacturer at the outset the need for
incorporating the requirements of the applicable FMVSS into the
product's design because it is far less expensive to change the
product's design in the planning stage than after the product is
manufactured, when tooling must be changed or an expensive safety
recall conducted. If the importer intends to have the manufacturer
produce a replacement part for a motor vehicle, the part installed as
original equipment may be used as a reference, keeping in mind the need
to avoid infringing on any applicable patent.
The importer and manufacturer may wish to consider conducting a
review of the product's design (a ``design review'') that involves
examining the product's configuration, the materials used in its
fabrication, and its labeling and packaging.\8\ Importers without staff
expertise and experience in design review may consider hiring a
qualified consultant. It may be worthwhile for the design review to
include a foreseeable use analysis,\9\ which involves integrating
safety into the product's design. An effective foreseeable use analysis
may reveal substantial safety hazards that involve risks of injury or
impairment of health that are related to the product's characteristics
or deficiencies.
---------------------------------------------------------------------------
\8\ U.S. Consumer Product Safety Commission (CPSC), ``Handbook
For Manufacturing Safer Consumer Products'' (Washington, DC, July
2006), p. 9. http://www.cpsc.gov/businfo/intl/
handbookenglishaug05.pdf. Note: many of our suggestions are based on
CPSC's Handbook, which provides a wealth of helpful ideas that are
generally applicable to various types of manufacturing processes.
\9\ Ibid, p. 10.
---------------------------------------------------------------------------
Apart from FMVSS, if any, that apply to the product, the importer
may wish to measure the product's design against a known set of
objectives for the product and compare the product's design to that of
similar products produced by other manufacturers. When no FMVSS apply,
it may also be sensible to measure the product's design against
accepted product standards such as a set of voluntary industry
standards, should one exist.\10\ To find applicable standards,
importers and manufacturers may wish to check the Web sites of
standard-setting bodies for products of the type at issue, such as the
Underwriters Laboratories Inc. (UL), American National Standards
Institute (ANSI), American Welding Society (AWS), ASTM International
(originally the American Society for Testing and Materials or ASTM),
and the Society of Automotive Engineers, International. See: http://
www.sae.org. Manufacturers of certain automotive replacement parts such
as lighting equipment may wish to visit the Web site of the Certified
Automotive Parts Association (CAPA) for more information about that
organization's certification program. See http://www.capacertified.org/
home.asp. These examples are not intended to be all-inclusive. It may
be desirable for an importer to contact other standard-setting and
certification organizations associated with the type of products it
wishes to have manufactured, should such organizations exist.
---------------------------------------------------------------------------
\10\ Ibid, p. 26.
---------------------------------------------------------------------------
Some manufacturers use other systematic analysis tools such as a
Failure Modes and Effects Analysis (FMEA) \11\ to identify potential
safety hazards and to improve their products over time by reducing or
eliminating failures. Using FMEA, failures can be prioritized according
to how serious their consequences are, how frequently they may occur,
and how easily they can be detected.\12\
---------------------------------------------------------------------------
\11\ The FMEA process was originally developed by the U.S.
military in the 1940s. See: American Society for Quality, http://
www.asq.org/learn-about-quality/process-analysis-tools/overview/
fmea.html.
\12\ CPSC, Handbook, p. 10.
---------------------------------------------------------------------------
It may be advisable to have parties with expertise in standards and
regulations compliance, in-use durability, quality assurance, and
customer service examine the results of the importer's product design
review. Importers and manufacturers that do not have in-house expertise
may consider using an accredited test laboratory to evaluate the safety
of a product.\13\
---------------------------------------------------------------------------
\13\ Ibid, p. 10.
---------------------------------------------------------------------------
Importers should consider creating records that identify changes in
the product's design or in the production process and to incorporate
changes that affect the product's use into the documents that accompany
the product when sold. When changes are made to the product's design or
to the production process, importers should obtain additional test data
to assure the product continues to comply with stated technical
specifications and with all applicable FMVSS. For traceability \14\ or
recall reasons, changed products can be identified by being marked or
stamped with ``date'' or ``lot'' codes, or in another manner that
distinguishes new products from old. It makes good sense to use current
versions of the supporting technical documentation such as drawings;
replacement parts data; instructions for the product's production,
inspection, testing, and
[[Page 39085]]
repair; as well as operating handbooks, and to remove from use obsolete
documents and data.\15\
---------------------------------------------------------------------------
\14\ Ibid, p. 25.
\15\ Ibid, p. 24.
---------------------------------------------------------------------------
(3) Inspect Foreign Manufacturing Facilities
Before entering into a written contract, we believe it is prudent
for the U.S. importer to personally visit the supplier's facility and
to determine whether the manufacturer is properly licensed by the
appropriate government agencies. Several trips may be necessary to
conduct an objective evaluation of the company, its factory, and its
management. To reduce the potential for fraud, it is preferable to deal
directly with the manufacturer and to avoid dealing with
representatives (such as trade groups) that claim to represent a
manufacturer. When dealing with a business partner of the manufacturer,
it is generally advisable to determine whether the partner is a
subsidiary of a larger company \16\ and whether the importer has
recourse against the parent company if the subsidiary defaults on its
obligations. It may also be reasonable to hire a consultant if the
importer has limited knowledge of, or experience with, the culture and
trade practices of a foreign country.
---------------------------------------------------------------------------
\16\ For example, see U.S. Department of Commerce (DOC),
``Essential China Advice'' (Washington, DC, 2001-2008) http://
www.buyusa.gov/china/en/chinabiztips.html (February 22, 2008).
---------------------------------------------------------------------------
While visiting a manufacturer's foreign facilities, the importer
may consider asking the manufacturer's production managers to identify
the quality control mechanisms that are in place (e.g., ISO 9000 series
quality assurance compliance) and it may be helpful to observe whether
there is evidence of good quality workmanship.
During the on-site visit, the importer should look for counterfeit
commodities or evidence of trademark or copyright violations such as
fraudulent seals made to look like those produced by certification
organizations. While NHTSA does not have authority to enforce statutes
that prohibit counterfeit products from being imported and the agency
is aware that in some situations counterfeit products may, in fact,
comply with applicable FMVSS, importers should avoid business dealings
with known or suspected counterfeiters. Importers should be aware that
many Federal departments and agencies are working with industry to stop
the proliferation of counterfeit products.\17\ Also assisting in these
efforts are many independent organizations such as the U.S. Chamber of
Commerce, which represents more than three million businesses.\18\
---------------------------------------------------------------------------
\17\ The Office of the U.S. Trade Representative and the
Departments of Commerce, State, Justice, and Homeland Security lead
a government-wide initiative, the Strategy Targeting Organized
Piracy (STOP!), to fight billions of dollars in global trade in
pirated and counterfeit goods that cheat American innovators and
manufacturers, hurt the U.S. economy and endanger consumers
worldwide. See: http://www.stopfakes.gov or call 1-866-999-HALT.
\18\ The U.S. Chamber of Commerce sponsors the Coalition Against
Counterfeiting and Piracy. See http://www.thetruecosts.org/.
---------------------------------------------------------------------------
It is advisable to reach agreement with a prospective supplier on
what constitutes substandard or defective products, and on who will be
responsible for conducting recalls of products that have a safety-
related defect or a noncompliance with a FMVSS. Of particular
importance in this context are the importer's obligations under the
Vehicle Safety Act to make determinations as to whether a product
contains a safety-related defect or does not comply with a FMVSS. The
importer should make clear to the foreign fabricating manufacturer that
the importer makes the determination of a safety-related defect or
noncompliance under U.S. law regardless of the fabricating
manufacturer's views. The importer must recognize that its liability to
conduct a recall when the facts so warrant under the Vehicle Safety Act
is joint and several and the willingness of the foreign fabricating
manufacturer to pay for all or some of the costs of the recall is not
relevant. Nonetheless, the importer may wish to include provisions in
the contract with the foreign fabricating manufacturer that covers
contingencies, including recalls.
All aspects of the product's design and the production process may
be considered for inclusion in the written contract, such as inspection
and testing procedures and any documentation the importer requires,
including work orders, operation sheets, inspection logs, repair logs,
and test procedure checklists.\19\ The contract may also specify under
what circumstances the product's design may be changed (if at all),
what equipment must be used for particular manufacturing operations,
product traceability measures to be employed, and the types of forms to
be used for recording quantitative data such as test readings. It is
useful for the contract to specify exact terms of payment, performance
standards, and timelines for deliveries and payments. Other
arrangements that are reached between the importer and supplier should
also be made in writing, such as those covering the importer's rights
to visit the production facility in order to provide guidance and
conduct product inspections.
---------------------------------------------------------------------------
\19\ CPSC, Handbook, p. 28.
---------------------------------------------------------------------------
The importer should obtain sound legal guidance before entering
into an agreement. Following execution of the contract, it is wise to
adhere to the contract provisions or risk the costs of a legal dispute
in a foreign country. The importer should obey all laws and regulations
of the foreign country and be wary of any offer by the partner to
ignore or avoid those laws. Also, the importer may wish to become
familiar with U.S. Department of Commerce, Bureau of Industry and
Security (BIS) regulations relating to the transfer of dual use
technology to certain foreign countries. U.S. statutes prohibit
transfer of some sensitive technologies without a license. See http://
www.bis.doc.gov/2.
It may be imprudent to assume that the overseas operations will run
by themselves and visits to the foreign manufacturer on a frequent
basis may be needed to evaluate the state of affairs. During these
visits, the importer should, if possible, talk to employees to learn of
any substitutions of materials, modifications of the product's design,
and manufacturing problems that were encountered. The importer should
verify that the manufacturer is complying with contractual requirements
by inspecting the facilities, production operations, inspection and
test records, supplies, and audit results. The importer should also
ensure the product's continued compliance with the standards by having
performed ongoing FMVSS compliance tests. This inspection and testing
will provide feedback into the nature of the operation and is part of
the importer's oversight of the operation and its quality assurance/
quality control. The importer should not delay taking corrective action
with the manufacturer when circumstances necessitate such action.\20\
---------------------------------------------------------------------------
\20\ Ibid, p. 10.
---------------------------------------------------------------------------
(4) Inspect Goods Either Before They Are Exported to or Distributed in
the United States
Different products, designs, and fabrication processes will require
various levels of precision and accuracy of manufacturing equipment and
tooling.\21\ In all manufacturing processes, there is a need to monitor
how well the products meet given specifications because products will
deviate from specifications for reasons such as new tooling, aging
machinery, and human error. Manufacturers of quality products use
mathematical models for calibrating production
[[Page 39086]]
equipment, controlling the output of the manufacturing process, and
auditing production processes to attain improvements. Therefore,
importers may wish to carefully consider instituting a quality control
program at the outset.
---------------------------------------------------------------------------
\21\ Ibid, p. 28.
---------------------------------------------------------------------------
It would be wise for an importer to bear in mind that even though a
product appears to be well manufactured, this does not necessarily mean
that it also complies with applicable FMVSS and will not prove to be
defective in actual use. While it is important to produce quality
products, it is crucial that manufacturers test, on a continuing basis,
their products to verify compliance with the FMVSS. To better shoulder
the costs of any testing needed to assure compliance, smaller importers
may wish to consider consortium purchasing, which would allow them to
pool their resources.
To ensure that product requirements are within tolerances, it is
sensible to collect product samples at predetermined intervals and
inspect them for compliance with any specifications that are identified
in advance. The purpose of the inspection is to ensure that the
products safely perform their intended functions. Inspection procedures
may include a visual examination, testing with appropriate instruments,
measuring, or other forms of evaluation.\22\ Manufacturers collect
production samples for inspection based on mathematical models, which
are beyond the scope of this notice, but that are critical to ensuring
the quality of the end products. Test programs that are based on
statistically sound sampling techniques will increase the probability
that problems will be quickly identified and remedied before the
products are shipped. Obviously, it is preferable from a cost
perspective for nonconforming or substandard products to be discovered
by the manufacturer before shipping costs are incurred.
---------------------------------------------------------------------------
\22\ Ibid, p. 35.
---------------------------------------------------------------------------
It is generally expected that quality control issues will be
greater within the first batch of products made by the new
manufacturer. After the initial production run, the importer and
manufacturer may want to conduct an inspection to determine whether the
initial products function as intended, whether their dimensions are
within tolerances, and whether their appearance is satisfactory. The
importer and manufacturer may consider conducting comprehensive tests
of representative products to ensure compliance with design
specifications.
It is desirable to have an inspection plan to specify exactly what
is to be inspected, how an inspection will be conducted and how often,
and the types of gauges, tools, or instruments that will be used. If
inspections are particularly critical to product safety, the inspection
plan may require that they be performed by designated specialized or
certified personnel.\23\ It would be advisable to include inspection
procedures in the contract and any changes should be mutually agreed
upon so that a record of changes is maintained. We also suggest that
the contract clearly state how the costs of quality control inspection
and any need to redesign a product or process based on such inspections
will be apportioned.
---------------------------------------------------------------------------
\23\ Ibid, p. 36.
---------------------------------------------------------------------------
From the moment products leave the manufacturer until they are
acquired by consumers, they are exposed to numerous contingencies that
can affect their safety or usability. For these reasons, it is best not
to terminate quality control measures at the port and the prudent
importer might consider instituting quality control measures at storage
locations and throughout the domestic distribution process.
Distribution practices directly influence the safety of consumer
products so it is wise to exercise control over packaging and shipping
operations. This control includes the selection of adequate packaging
materials, design of methods of packaging that preclude damage in
shipment, and selection of shipping methods consistent with the
physical properties of the product. Packaging and shipping techniques
may need to be revised as experience dictates. In those instances where
distributors are involved in assembly or test operations before
delivery to the consumer it is wise to provide them with current and
adequate assembly and test instructions and the importer may wish to
ensure that these instructions are followed.\24\
---------------------------------------------------------------------------
\24\ Ibid, p. 40.
---------------------------------------------------------------------------
When quality control problems are encountered, it may be useful to
determine what has caused the problem and to collaborate with the
manufacturer and participants in the distribution process to remediate
the cause and prevent similar future problems. We believe it is wise to
keep in mind that reputable manufacturers want to be apprised of
problems and will work for compliance with the importer's requirements.
Developing and nurturing personal relationships with the business
partner may be helpful and may pay dividends if problems are
encountered.\25\ To prevent potentially dangerous products from being
delivered to consumers, it may be desirable for importers and
manufacturers to discuss the need for prompt corrective actions and to
agree on those in advance. These actions may include determining what
caused the problem, how to prevent future problems, and the removal of
problem products from the production and distribution channels before
they reach consumers.\26\ Locating products within the production and
distribution system is crucial to preventing hazardous products from
being delivered to consumers after safety-defects become apparent.
---------------------------------------------------------------------------
\25\ U.S. DOC, Essential Advice.
\26\ CPSC, Handbook, p. 45.
---------------------------------------------------------------------------
The importer might consider being prepared to provide the overseas
partner with training and technical assistance to assure product
quality.\27\ This commitment to quality control may minimize defect
costs and maintain profits by ensuring the end user's satisfaction,
thereby enhancing the prospect for repeat business. On the other hand,
neglecting oversight may result in compromised product quality and
could possibly lead to legal consequences at home and abroad. It is
worth noting that the foreign country's court system may not be relied
on to offer a legal settlement consistent with U.S. practice.\28\
---------------------------------------------------------------------------
\27\ U.S. DOC, Essential Advice.
\28\ Ibid.
---------------------------------------------------------------------------
(5) Identify the Product's Country of Origin
It is generally required that an imported product be properly
marked with its country of origin. The pertinent statute requires that,
unless excepted, every article of foreign origin (or its container)
imported into the United States must be marked with the article's
country of origin. See section 304, Tariff Act of 1930, as amended (19
U.S.C. 1304). The purpose of the marking requirement is to inform the
ultimate purchaser in the United States of the country in which the
imported article was produced.
Articles that are not marked at the time of importation with the
English name of their country of origin may be subject to additional
duties unless they are properly marked after importation, or are
exported or destroyed under CBP supervision. CBP allows importers,
where administratively practicable, to mark goods that are not marked
at the time of importation, prior to their release from CBP's control
or custody. This rule does not apply to an importer that has repeatedly
violated the country of origin marking requirements after
[[Page 39087]]
receiving written notification from CBP that the goods are required to
be marked prior to importation.
It is also important to keep in mind that any person who removes,
destroys, alters, covers, or obliterates, with the intent of
concealing, the country of origin marking on an imported article could
be subject to criminal prosecution.\29\
---------------------------------------------------------------------------
\29\ U.S. Customs and Border Protection (CBP), ``Marking of
Country of Origin'' (Washington, DC, December 2004) Publication
0000-0539 http://www.cbp.gov/xp/cgov/toolbox/publications/
trade/ (February 22, 2008).
---------------------------------------------------------------------------
(6) Establish a Consumer Service Program
It is wise for importers to establish and maintain an effective
consumer service program because good service leads to satisfied
customers and repeat business. An effective consumer service program
may also assist the importer in quickly identifying quality control and
safety-related problems and allow the importer to remedy those problems
before they become widespread. Importers should consider establishing a
consumer service program that includes the following elements:
(a) Consumer Education
An effective consumer service program will inform consumers using
product manuals or instructions on how products are to be assembled,
installed, and operated to prevent safety hazards. For example, NHTSA
recommends that consumers read the instruction manual provided with a
newly purchased child safety seat as well as the seat belt and child
seat installation section of their vehicle owner's manual before
attempting to install and use a child safety seat.
(b) Product Service
An effective consumer service program will make it easy for
consumers to obtain replacement parts and will inform consumers how and
where to take the product for servicing, particularly for deficiencies
or malfunctions that are potential causes of safety hazards. Importers
may consider providing a U.S. telephone number with the product for
consumers to call if they have questions regarding the product.
(c) Recordkeeping
An effective consumer service program will include a records system
that identifies a product by serial number, model, and date of
manufacture and that identifies its location in the distribution system
and after sale to a consumer. Importers should be aware that
recordkeeping becomes very important for notifying consumers,
retailers, and distributors of products when a safety recall is
announced.
(d) Safety Recall Plan
An effective consumer service program will include a plan for the
rapid recall of imported products from consumers, distributors, and
dealers. The plan should include procedures to inform consumers how the
importer will respond to safety defects or noncompliances with the
FMVSS that are determined to exist in a product.\30\ The recall plan
should also establish procedures for notifying NHTSA about safety-
related defects or noncompliances with the FMVSS, as required by agency
regulations. The recall plan should be periodically evaluated and
amended as necessary.
---------------------------------------------------------------------------
\30\ CPSC, Handbook, p. 42.
---------------------------------------------------------------------------
(e) Intervention
If a noncompliance or safety-related defect becomes apparent, an
effective consumer service program will assist an importer in locating
products within the production and distribution system and help to
prevent problem products from being delivered to consumers.
(f) Notification
In the event of a recall, the most important factor is the ability
to inform as many owners, dealers, retailers, and distributors of the
product as possible. Notifying owners will be the importer's
responsibility. While it may be impractical to maintain records
identifying all retail purchasers of a particular consumer product, the
importer may wish to make a reasonable effort in that direction by
requesting distributors, dealers or retailers to maintain such records
or by including with products self-addressed mailing cards for
consumers to use, if they so choose, to register their ownership of the
product.\31\ Where it is a requirement to maintain records identifying
retail purchasers of a product, such as is the case for tires and for
motor vehicles, the importer must ensure that distributors, dealers,
and retailers understand their obligations under existing regulations.
For example, see 49 CFR part 574 Tire Identification and Recordkeeping.
---------------------------------------------------------------------------
\31\ Ibid, p. 45.
---------------------------------------------------------------------------
(g) Business Process Monitoring
Other than complaints received directly from the importer's
consumer service program, information that could assist in identifying
safety-related defects or noncompliances with the FMVSS includes
insurance claims, lawsuits, product return data from business partners,
the results of ongoing quality assurance testing, and information about
products that share common parts or platforms. The importer should also
pay close attention to the EWR data it submits to NHTSA because that
information may be very useful in identifying safety-related problems
early in the product's history.
(7) Contact NHTSA Concerning Manufacturer/Importer Reporting
Requirements, Safety Compliance, and Defect Issues
Enhanced product safety for imported motor vehicles and equipment
will result from a collaborative effort between the importer community,
manufacturers, and NHTSA. To this end, we offer the following agency
contact numbers and Internet resources to help answer questions about
these recommended best importer practices.
------------------------------------------------------------------------
Office of Vehicle Safety Compliance
-------------------------------------------------------------------------
NHTSA Office/
Topic Internet Telephone No.
------------------------------------------------------------------------
General questions about Import and (202) 366-5291
importing vehicles and Certification
equipment items. Division.
------------------------------------------------------------------------
General Importation Information. http://www.nhtsa.dot.gov/cars/rules/
import/
____________________________________
Questions about how a Import and (202) 366-5291
manufacturer informs NHTSA Certification
about its company and the Division.
products it manufactures.
Questions about how to provide Import and (202) 366-5291
NHTSA with the manufacturer's Certification
vehicle identification number Division.
deciphering information.
[[Page 39088]]
Questions about NHTSA ID numbers Equipment Division. (202) 366-5322
that are assigned to equipment
manufacturers of brake hoses,
glazing (glass), and tires.
------------------------------------------------------------------------
Information to Assist New http://www.nhtsa.dot.gov/cars/rules/
Manufacturers. maninfo/
------------------------------------------------------------------------
Questions about FMVSS as they Equipment Division. (202) 366-5322
relate to equipment items
(i.e., tires, rims, brake
hoses, brake fluid, seat belt
assemblies, lighting equipment,
glazing (automotive glass and
plastics), motorcycle helmets,
child restraint systems (child
safety seats), platform lift
systems for the mobility
impaired, rear impact guards
for trailers, triangular
reflective warning devices, and
compressed natural gas
containers).
------------------------------------------------------------------------
Federal motor vehicle safety http://www.nhtsa.dot.gov/cars/rules/
standards (FMVSS).
------------------------------------------------------------------------
NHTSA's Manufacturer Databases.. www.nhtsa.dot.gov/cars/rules/
manufacture
------------------------------------------------------------------------
Government Vehicle Safety http://www.safercar.gov/
Information.
------------------------------------------------------------------------
------------------------------------------------------------------------
Office of Defects Investigation
-------------------------------------------------------------------------
NHTSA Office/
Topic Internet Telephone No.
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Questions about Early Warning Early Warning (202) 366-4238
Reporting (EWR). Division.
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Early Warning Reporting......... http://www-odi.nhtsa.dot.gov/ewr/
ewr.cfm
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Questions about Defects and Office of Defects (202) 366-5210
Recalls. Investigation.
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Defects Investigations.......... http://www-odi.nhtsa.dot.gov/
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____________________________________
Office of Chief Counsel
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NHTSA Office/
Topic Internet Telephone No.
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Questions about how the statutes Office of Chief Requests for
and regulations administered by Counsel. interpretations
NHTSA are interpreted. should be made in
writing.
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NHTSA Chief Counsel interpretive http://isearch.nhtsa.gov/
letters.
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NHTSA Statutory Authorities..... http://www.nhtsa.dot.gov/nhtsa/Cfc_
title49/index.html
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NHTSA Regulations............... http://www.nhtsa.dot.gov/cars/rules/
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Questions about how to designate Office of Chief (202) 366-1834.
a U.S. resident as an agent for Counsel.
service of process.
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Suggested Designation of Agent http://www.nhtsa.dot.gov/cars/rules/
for Service of Process 49 CFR manufacture/agent/customer.html
Part 551, Subpart D.
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(8) General Assistance with Federal Regulations
The Office of Management and Budget, in conjunction with the U.S.
Small Business Administration, publishes a one-stop Internet resource
to make it easier for importers to understand Federal regulations,
including those administered by NHTSA. The Web site provides a point of
contact at each agency to answer specific questions.\32\ See: http://
www.business.gov/contacts/federal/. U.S. Customs and Border Protection
(CBP), an agency of the U.S. Department of Homeland Security, has also
published ``Importing into the United States: A Guide for Commercial
Importers,'' which provides wide-ranging information about the
importing process and import requirements. See: http://www.cbp.gov/xp/
cgov/toolbox/publications/trade/.
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\32\ The Small Business Paperwork Relief Act of 2002 (SBPRA)
requires each Federal agency to establish a point of contact to act
as a liaison between the agency and small businesses. In addition,
SBPRA requires the Office of Management and Budget (OMB), in
conjunction with the Small Business Administration, to publish on
the Internet a list of compliance assistance resources available at
Federal agencies for small businesses.
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Authority: E.O. 13439, 72 FR 40051.
Issued on: July 1, 2008.
Daniel C. Smith,
Associate Administrator for Enforcement.
[FR Doc. E8-15494 Filed 7-7-08; 8:45 am]
BILLING CODE 4910-59-P