[Federal Register Volume 74, Number 186 (Monday, September 28, 2009)]
[Rules and Regulations]
[Pages 49338-49341]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23335]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 599
[Docket No. NHTSA-2009-0120]
RIN 2127-AK61
Requirements and Procedures for Consumer Assistance To Recycle
and Save Program
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule amends the regulation implementing the
Consumer Assistance to Recycle and Save (CARS) Program, published on
July 29, 2009 in the Federal Register, under the CARS Act. The rule
adds an exception process for registered dealers who were prevented
from submitting an application for reimbursement for a qualifying
transaction prior to the announced August 25, 2009 deadline due to
problems associated with the CARS electronic transaction system.
DATES: This final rule is effective September 28, 2009. A request for
an exception must be postmarked no later than October 13, 2009.
ADDRESSES: A request for exception must be made in writing and mailed
by United States mail to the NHTSA Administrator, 1200 New Jersey Ave.,
SE., Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For questions, you may call David
Bonelli, NHTSA Office of Chief Counsel, telephone (202) 366-5834.
SUPPLEMENTARY INFORMATION:
Background
This final rule amends the regulation implementing the Consumer
Assistance to Recycle and Save (CARS) Program, published on July 29,
2009 (74 FR 37878), with a previous amendment published on August 5,
2009 (74 FR 38974), under the CARS Act (Pub. L. 111-32). The rule adds
an exception process for registered dealers who were unable to submit
an application for reimbursement for a qualifying transaction prior to
August 25, 2009, 8 pm EDT, NHTSA's announced deadline for the program.
As detailed below, this exception process is available only where the
delay is attributable to action or inaction by NHTSA.
Due to the enormous popularity of the CARS program, the available
Federal funds were depleted in a short period of time. Based on daily
projections of transactions, NHTSA determined that it was necessary to
declare an August 24, 2009, 8 pm EDT deadline for completing CARS deals
and an August 25, 2009, 8 pm EDT deadline for submitting applications
for reimbursement. The agency received an overwhelming number of
inquiries to the CARS hotline from dealers and consumers during the
course of the program, and especially during the days immediately prior
to the announced deadline. From these inquiries, we learned that
dealers encountered problems in submitting applications for
reimbursement as a result of problems caused by the agency's
transaction system. Because the agency was unable to respond to and
resolve some of these problems prior to the application deadline, some
dealers who had made qualifying CARS deals and extended credits to
consumers in accordance with the provisions of the rule were prevented
from completing and submitting applications for reimbursement.
We are aware that some of these difficulties arose because of a
feature that automatically locks a dealer out of the CARS transaction
system and prevents the dealer from being able to re-enter the system
without the agency's assistance. This occurred, for example, when a
dealer inaccurately entered its account password into the system
multiple times. Ordinarily, the dealer's password could be reset
through a simple telephone call to the agency for technical assistance.
However, due to the volume of transactions and inquiries, some dealers
may have been unsuccessful in their attempts to get their passwords
reset prior to the deadline.
We are aware also that some dealers were unable to submit an
electronic application because of an automatic feature that precluded a
submission with a State identification number, a trade-in vehicle's
vehicle identification number (VIN), or a new vehicle's VIN
[[Page 49339]]
that was previously entered into a draft application in the CARS
system. This feature was designed to detect multiple transactions with
the same persons or vehicles, errors, and attempted fraud. However, the
application of this feature also blocks transactions where the draft
application with the same State identification number or VIN was
entered, but never submitted as part of a completed application. This
might occur, for example, where a dealer enters a purchaser's State
identification number, trade-in vehicle's VIN, and/or new vehicle's VIN
as part of an application, but the deal is never completed between the
parties. If the same or another dealer attempts to enter this same
purchaser or vehicle information as part of another transaction, the
system automatically rejects the application even if the purchaser, the
trade-in vehicle, and the new vehicle have never been part of a
completed CARS deal.
On most occasions where such problems occurred, a dealer was able
to contact NHTSA officials to resolve the issue. However, due to the
overwhelming number of transactions and inquiries that occurred as the
application deadline approached, the agency was unable to respond to
and resolve all dealer inquiries. As a result, some dealers may have
been prevented from submitting an application for reimbursement,
despite having made a qualifying CARS deal, where the dealer took
ownership of the trade-in vehicle and transferred ownership and
possession of the new vehicle to the purchaser.
Today's final rule establishes an exception process by which a
dealer may apply for reimbursement of a CARS credit if it had made a
binding CARS deal prior to the application deadline but was prevented
from submitting an application for reimbursement prior to the deadline
due to a hardship caused by the agency. This exception process is
available only to dealers, and not to consumers, as the CARS Act
authorizes payment only to dealers. However, the process also benefits
consumers, by enabling a dealer to seek reimbursement from the agency
for a legitimate transaction rather than seeking return of the vehicle
or repayment of the credit from the consumer.
Exception Process
To qualify for the exception process, a dealer must have been
prevented from submitting an application for reimbursement due to a
hardship caused by the agency. Specifically, a dealer may request an
exception if the dealer was locked out of the CARS system, contacted
NHTSA for a password reset prior to the announced deadline, but did not
receive a password reset. A dealer also may request an exception if its
timely transaction was rejected by the CARS system due to a duplicate
State identification number, trade-in vehicle VIN, or new vehicle VIN
that was never used for a submitted CARS transaction, if the dealer
contacted NHTSA prior to the announced deadline to resolve the issue
but did not receive a resolution. Finally, a dealer may seek an
exception if it was prevented from submitting a transaction by the
announced deadline due to another hardship attributable to NHTSA's
action or inaction, upon submission of proof and justification
satisfactory to the Administrator.
A request for an exception will not be granted if the dealer did
not complete a qualifying vehicle sale/lease and trade-in vehicle
transaction meeting the existing requirements of Sec. 599.300 and
Sec. 599.301 prior to the August 24th deadline. A qualifying
transaction requires that the dealer took ownership and possession of
the trade-in vehicle and delivered ownership and possession of the new
vehicle to the purchaser. A request for an exception also will not be
granted if a dealer's inability to complete or submit an application
was due to a reason other than action or inaction by NHTSA, such as
technological difficulties in the dealer's own systems or processes.
The exception process is not available for transactions that were
successfully submitted on the CARS system but were subsequently
rejected, as dealers have the opportunity to correct and resubmit their
applications following rejection. The agency informed dealers on
several occasions that any applications created in the system must be
submitted, even if in incomplete form, prior to the application
deadline, and the agency also informed the dealers that they would have
the opportunity to correct any incomplete applications after the
application deadline.
A dealer seeking an exception must describe in a written statement
the basis for the exception and provide evidence that it was prevented
from submitting an application by the deadline due to action or
inaction by NHTSA. Such evidence may include copies of correspondence,
such as electronic mail, documenting that the dealer contacted the
agency regarding issues with its application. The dealer also must
present proof that a qualifying deal was made on or after July 1, 2009,
but not later than August 25, 2009, 8 pm EDT, by submitting paper
copies of all completed and signed supporting documents and
certifications required under Sec. 599.302(c)(2) and (c)(3) of the
rule.
All decisions granting or denying a request for exception will be
made by the NHTSA Administrator or his or her designee. Finally, in
order to bring finality to the CARS accounting process, all requests
for exception must be postmarked no later than October 13, 2009.
Statutory Basis for This Action
This final rule makes amendments to implement the Consumer
Assistance to Recycle and Save Act (CARS Act) (Pub. L. 111-32), which
directs the Secretary to issue final regulations.
APA Requirements and Effective Date
The rule is being issued without first providing a notice and an
opportunity for public comment. Section 1302(d) of the CARS Act
provides that ``notwithstanding'' the requirements of section 553 of
title 5, United States Code, the Secretary shall promulgate final
regulations to implement the Program not later than 30 days after the
date of the enactment of this Act. Due to the enormous success and
popularity of the CARS program, the agency closed the program and
issued an August 25, 2009, 8 p.m. EDT deadline for submission of
applications for reimbursement. However, the agency is aware that there
are completed valid transactions for which dealers were unable to
submit applications prior to the deadline. In order to ensure that
dealers and consumers do not unwind these transactions because dealers
were not reimbursed, the agency believes that it is important to
promulgate an exception process for the final rule immediately.
Therefore, the agency finds for good cause that providing notice and
comment is impracticable and contrary to the public interest for these
changes to the final rule. Drafting and issuing a proposed rule,
providing a period for public comment, and addressing those comments in
the final rule would be highly impracticable in the time available and
would substantially inhibit the ability to make payment for granted
exception requests.
For the above-mentioned reasons, the agency also finds that it has
good cause to make this rule effective fewer than 30 days after the
publication in the Federal Register.
We believe it is necessary to provide these amendments immediately
to ensure that payment for valid transactions submitted under the
exception process permitted under this rule can be made. We also note
that this rule relieves restrictions in the original
[[Page 49340]]
final rule by permitting additional submissions of applications for
reimbursement. It would, therefore, be inconsistent with Congressional
intent, impracticable, and contrary to the public interest to delay the
effective date of the regulation, which would, in turn, adversely
affect payment for valid transactions.
Accordingly, the effective date of this final rule is September 28,
2009.
Regulatory Analyses and Notices
Because of the public and Congressional interest in the CARS
program, this rulemaking is considered significant under Executive
Order 12866 and the Department of Transportation's Regulatory Policies
and Procedures. It was reviewed by the Office of Management and Budget.
The agency has discussed the relevant requirements of the Regulatory
Flexibility Act, Executive Order 13132 (Federalism), Executive Order
12988 (Civil Justice Reform), the National Environmental Policy Act,
and the Unfunded Mandates Reform Act in the July 29, 2009 final rule
cited above. This rule does not change the finding in those analyses.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), 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. As part of this final rule, the agency must request
information from participating dealers that encountered problems in
submitting applications for CARS transaction reimbursement prior to the
announced August 25, 2009 deadline due to action or inaction by NHTSA.
Today's collection of information amends a previously approved
collection, OMB Control No. 2127-0660, to address an exemption process
by which a dealer may apply for reimbursement of a CARS credit if it
had made a binding CARS deal prior to the application deadline but was
prevented from submitting the application due to a hardship caused by
the agency.
The agency has received approval from OMB to amend the following
collection of information:
Title: CARS Program; Dealer and Buyer Transaction Information.
OMB Control No.: 2127-0660.
Expiration date: January 31, 2010.
NHTSA has been given OMB approval to collect an additional 2,000
responses, for a total of 1,000 additional burden hours. The total
number of responses under this collection is 1,352,000, for a total of
372,350 burden hours.
Regulatory Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this document
to find this action in the Unified Agenda.
Privacy Act
Please 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 the complete User Notice and Privacy Notice for Regulations.gov
at http://www.regulations.gov/search/footer/privacyanduse.jsp.
List of Subjects in 49 CFR Part 599
Fuel Economy, Motor vehicle safety.
0
In consideration of the foregoing, NHTSA hereby amends 49 CFR part 599
as set forth below.
PART 599--REQUIREMENTS AND PROCEDURES FOR CONSUMER ASSISTANCE TO
RECYCLE AND SAVE ACT PROGRAM
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1. The authority citation for part 599 continues to read as follows:
Authority: 49 U.S.C. 32901, Notes; delegation of authority at 49
CFR 1.50.
0
2. Add Subpart F to read as follows:
Subpart F--Requirements and Procedures for Exceptions
Sec.
599.600 Exceptions--applicability and requirements.
599.601 Procedures for requesting exception.
599.603 Disposition of requests for exception.
Subpart F--Requirements and Procedures for Exceptions
Sec. 599.600 Exceptions--applicability and requirements.
(a) Applicability. (1) Eligible Requesters. To qualify for an
exception under this subpart, a requester must be a dealer registered
in accordance with the requirements of Sec. 599.200.
(2) Filing deadline. A request for an exception must be postmarked
no later than October 13, 2009.
(3) Availability of funds. An exception shall be approved under
this subpart only if Federal funds are available for payment.
(4) Exclusion. No exception may be approved for an application for
reimbursement that was successfully submitted to the CARS system.
(b) Threshold requirements. Subject to the requirements of Sec.
599.600(a), a registered dealer may submit a request for exception and
seek reimbursement of a CARS credit under this subpart if the dealer:
(1) Prior to August 24, 2009, 8 pm EDT, completed a qualifying deal
meeting the requirements of Sec. 599.300 and Sec. 599.301;
(2) Took ownership and possession of a trade-in vehicle and
transferred ownership and possession of a new vehicle to the purchaser;
and
(3) Prior to August 25, 2009, 8 pm EDT, attempted to submit an
application for reimbursement meeting the requirements of Sec.
599.302, but was prevented from submitting the application for any of
the reasons identified in Sec. 599.600(c).
(c) Exception cases. A dealer is eligible for an exception if:
(1) Password rejection. The dealer's account password was locked
out and not reset by NHTSA;
(2) Transaction rejection. The application was rejected at
submission because the dealer entered a State identification number, a
trade-in vehicle VIN, or a new vehicle VIN that was already entered
into the CARS program system, but that State identification number,
trade-in vehicle VIN, or new vehicle VIN was never used for a CARS
deal; or
(3) Other hardship. The dealer experienced any other hardship
attributable to NHTSA action or inaction that the Administrator
determines in his or her discretion should be redressed, consistent
with the purposes of the CARS Act.
Sec. 599.601 Procedures for requesting exception.
(a) Submission. A request for exception must be made in writing and
mailed by United States mail to the NHTSA Administrator, 1200 New
Jersey Ave SE., Washington, DC 20590.
(b) Contents. The request must include paper copies of the
following materials:
(1) Explanation of hardship. A written explanation of a hardship
identified in Sec. 599.600(c) that prevented the dealer from
submitting its transaction, and the steps the dealer took to contact
the agency and timely resolve the issue;
(2) Proof of hardship. Documents evidencing that the dealer was
unable to complete and submit an application for
[[Page 49341]]
reimbursement prior to the deadline because of hardship caused by
NHTSA. Documents may include copies of correspondence with the agency;
(3) Documentation of qualifying transaction. Paper copies of all
supporting attachments required by Sec. 599.302(c)(2) which reveal
that a qualifying CARS transaction, including the transfer of ownership
and possession of the trade-in vehicle to the dealer and the delivery
of ownership and possession of the new vehicle to the purchaser, was
made prior to August 24, 2009, 8 p.m. EDT; and
(4) Certifications. Paper copies of all certifications provided in
Appendix A to this part, signed by both the dealer and the purchaser.
(5) Evidence of prior notice to NHTSA. Evidence, if any, that the
dealer attempted to contact NHTSA prior to August 25, 2009, 8 p.m. EDT,
to request assistance with a problem described in Sec. 599.600(c).
Sec. 599.603 Disposition of requests for exception.
(a) In general. Upon receipt of the request for exception, the
agency will review the request to determine whether the exception
should be granted and approved for payment.
(b) Deciding official. The NHTSA Administrator or his or her
designee shall serve as the Deciding Official for all determinations
under this subpart.
(c) Incomplete requests. A request for exception that fails to
include all of the documents required under this subpart may be
rejected without further review.
(d) Denied requests. If the Deciding Official denies the request,
the requester will be informed in writing of the reasons for the denial
of the request.
(e) Granted requests. If the Deciding Official grants the request,
the requester will be notified by electronic mail, at the e-mail
address identified in Sec. 599.200(c)(2)(iii), and the requester's
application for reimbursement will be processed for payment by the
agency as a qualifying transaction in accordance with Sec. 599.304.
(f) No appeals. There are no appeals from the Deciding Official's
decision.
Issued on: September 23, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-23335 Filed 9-23-09; 4:15 pm]
BILLING CODE 4910-59-P