[Federal Register Volume 71, Number 40 (Wednesday, March 1, 2006)]
[Notices]
[Pages 10591-10596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1896]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA 2005-22654; Notice 2]
Final Decision To Partially Rescind Decision That Nonconforming
1990-1999 Nissan GTS and GTR Passenger Cars Are Eligible for
Importation
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final decision to partially rescind decision that nonconforming
1990-1999 Nissan GTS and GTR passenger cars are eligible for
importation.
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SUMMARY: This document announces a final decision by NHTSA to partially
rescind a prior decision by the agency that 1990-1999 Nissan GTS and
GTR passenger cars not originally manufactured to comply with all
applicable Federal motor vehicle safety standards (FMVSS) are eligible
for importation into the United States. As a result of this decision,
only Nissan R33 model GTS and GTR passenger cars manufactured between
January 1996 and June 1998 are eligible for importation. All other
model and model year vehicles admissible under the prior decision are
no longer eligible for importation. As a consequence, the agency is
rescinding vehicle eligibility number VCP-17, which covered vehicles
admissible under the prior decision, and issuing vehicle eligibility
number VCP-32 to cover only those model and model year Nissan GTS and
GTR passenger cars that remain eligible for importation. The rescission
will only bar the future importation of the model and model year Nissan
GTS and GTR passenger cars that are no longer eligible for importation,
and will not affect the status of vehicles that have already been
lawfully imported under vehicle eligibility number VCP-17.
DATES: The decision is effective on March 1, 2006.
FOR FURTHER INFORMATION CONTACT: Coleman Sachs, Office of Vehicle
Safety Compliance, National Highway Traffic Safety Administration, 400
Seventh Street, SW., Washington, DC 20590 (202-366-5291).
SUPPLEMENTARY INFORMATION:
A. Statutory and Regulatory Background
Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not
originally manufactured to conform to all applicable Federal motor
vehicle safety standards (FMVSS) shall be refused admission into the
United States unless NHTSA has decided that the motor vehicle is
substantially similar to a motor vehicle originally manufactured for
importation into and sale in the United States, certified under 49
U.S.C. 30115, and of the same model year as the model of the motor
vehicle to be compared, and is capable of being readily altered to
conform to all applicable FMVSS. Where there is no substantially
similar U.S.-certified motor vehicle, 49 U.S.C. 30141(a)(1)(B) permits
a nonconforming motor vehicle to be admitted into the United States if
its safety features comply with, or are capable of being altered to
comply with, all applicable FMVSS based on crash test data or other
evidence (such as an engineering analysis) that NHTSA decides is
adequate.
Petitions for eligibility decisions may be submitted by either
manufacturers or importers who have registered with NHTSA pursuant to
49 CFR Part 592. As specified in 49 CFR 593.7, NHTSA publishes notice
in the Federal Register of each petition that it receives, and affords
interested persons an opportunity to comment on the petition. At the
close of the comment period, NHTSA decides, on the basis of the
petition and any comments that it has received, whether the vehicle is
eligible for importation. Because NHTSA has little or no direct
knowledge of many vehicles for which import eligibility is sought, the
agency must rely on the petition and any comments that are submitted in
making this decision. The agency then publishes its decision in the
Federal Register. If NHTSA decides that the vehicle is eligible for
importation, it will assign a vehicle eligibility number. The
eligibility
[[Page 10592]]
number is entered on the importation declaration to inform Customs that
the vehicle can be lawfully imported (by a registered importer or by a
person who has a contract with a registered importer to modify the
vehicle) even though the vehicle was not originally manufactured to
comply with all applicable FMVSS or was not so certified by its
original manufacturer for importation into, and sale in, the United
States.
B. Import Eligibility Petition and Decision
NHTSA was petitioned by a registered importer to decide whether
1990-1999 Nissan GTS and GTR Passenger cars are eligible for
importation into the United States. To afford an opportunity for public
comment, NHTSA published notice of this petition under Docket Number
NHTSA-99-5507 on April 16, 1999 (64 FR 18963). As stated in the notice,
the petitioner claimed that 1990-1999 Nissan GTS and GTR passenger cars
have safety features that comply with many standards that apply to
passenger cars of the model years in question, and are capable of being
altered to comply with other applicable standards. With respect to
FMVSS No. 208 Occupant Crash Protection, the petitioner stated that the
driver's air bags on 1990-1993 models, and the driver's and passenger's
air bags on 1994-1999 models, would need to be replaced with components
manufactured to the petitioner's specifications based on the results of
dynamic crash tests conducted by MGA Research Corporation. As indicated
by the petitioner, these tests were conducted after it had made certain
structural modifications to the vehicles.
No comments were received in response to the notice of petition.
Based on its review of the information submitted by the petitioner,
NHTSA granted the petition on November 15, 1999, and assigned Vehicle
Eligibility Number VCP-17 to vehicles admissible under that decision.
The agency published notice of the decision on January 19, 2000 (65 FR
3002).
C. Information Undermining Eligibility Decision
After the notice of decision granting the petition was published,
the agency obtained additional information regarding 1990-1999 Nissan
GTS and GTR passenger cars from Nissan North America, Inc., the U.S.
representative of Nissan Motor Company, LTD (Nissan) of Tokyo, Japan,
the vehicles' manufacturer. Nissan informed the agency that it
manufactured three distinct GTS and GTR models from 1990 to 1999,
designated as the R32, the R33, and the R34 models, respectively.
Nissan stated that the R32, the R33, and the R34 models differ in terms
of their ``structural design and restraint performance,'' and that each
of the models, which followed a chronological sequence, was ``newly
designed and different from the type preceding it.'' Nissan confirmed
that the company received official type approval from the Japanese
government for each model separately, and stated that it was ``highly
likely that each model type would perform differently in the crash
tests required by the FMVSS.''
Nissan also provided a chart showing production ``start'' and
``end'' dates for the R32, the R33, and the R34 models. The R32 models
were manufactured from May 1989 through November 1994; the R33 models
were manufactured from August 1993 through June 1998; and the R34
models were manufactured from November 1997 through August 2002.
Included in the chart is information identifying the production
``start'' dates when air bags were offered as an option and as standard
equipment at both the driver's and the front passenger's seating
positions on the R32, the R33, and the R34 model vehicles.
The agency did not have this information at the time of its
original decision to grant import eligibility to 1990-1999 Nissan GTS
and GTR passenger cars. Instead, the agency heavily relied on the
results of static and dynamic tests on two modified 1996 R33 model
vehicles, which the original petition suggested were representative of
the entire model year range covered by the petition. As indicated in
the original petition, the petitioner had made structural modifications
to these two vehicles and replaced the air bags at the driver's and
front passenger's seating positions with components manufactured to its
own specifications. With the benefit of the information provided by
Nissan, it is now apparent that the petitioner did not demonstrate full
compliance with the performance requirements of FMVSS 208 and other
crashworthiness standards (e.g., FMVSS Nos. 210 Seat Belt Assembly
Anchorages, 212 Windshield Mounting, and 301 Fuel System Integrity) for
R32 and R34 models because petitioner did not identify these separate
models or provide crash performance test data on them.
The agency's decision to grant import eligibility to 1990-1999
Nissan GTS and GTR passenger cars also relied on the petitioner's
assertion that the original equipment driver's air bag on 1990-1993
models, and the driver's and passenger's air bags on 1994-1999 models
would be replaced with components manufactured to the petitioner's
specifications.
However, the air bag production chart provided by Nissan shows that
no driver's air bags were available in the R32 GTS model until August
1991. For the R32 GTR model, no driver's air bag was offered until
February 1994, and it was then offered only as optional equipment.
Nissan did not offer passenger's air bags in the R32 model. Nissan
began production of the R33 model in August 1993, offering both
driver's and passenger's air bags as optional equipment on the GTS
model. It was not until January 1995 that a driver's air bag was
offered on the GTR model. As of January 1995, the driver's air bag
became standard on both GTS and GTR models. One year later, in January
1996, the passenger's air bag became standard on both GTS and GTR
models.
Nissan has informed the agency that it does not possess records
that would allow it to determine whether any individual vehicle had air
bags installed as optional equipment. Based on the information
furnished by Nissan, the agency can only be assured that R33 model
vehicles, produced by Nissan beginning in January 1996, had both
driver's and passenger's air bags installed as original equipment.
D. Tentative Decision To Partially Rescind Import Eligibility
On the basis of the foregoing, NHTSA tentatively concluded that the
original grant of eligibility to the 1990-1999 Nissan GTS and GTR
passenger cars, comprising R32, R33, and R34 model vehicles, was overly
broad. As a consequence, the agency tentatively decided to rescind that
decision in part, so that only Nissan R33 model GTS and GTR passenger
cars manufactured between January 1996 and June 1998 would be eligible
for importation if the tentative decision was made final. The agency
published a notice of the tentative decision on November 28, 2005, 70
FR 71375. The notice solicited public comments on the tentative
decision.
E. Comments on Tentative Decision
The agency received 35 comments in response to the notice of
tentative decision. Nine of these were duplicates. Eliminating the
duplicates, a total of 26 comments were received. Those comments are
summarized below.
a. General Issues
Ten commenters opposed any change in the existing decision that
1990-1999
[[Page 10593]]
Nissan GTS and GTR ``Skyline'' passenger cars are eligible for
importation. Two commenters expressed the opinion that Skylines are not
unsafe vehicles. Three commenters observed that there are so few
Skyline vehicles in the United States that their impact on motor
vehicle safety is negligible. Three commenters observed that NHTSA
should not rescind import eligibility for Nissan Skylines, thereby
denying enthusiasts the opportunity to own these vehicles, on account
of a single registered importer's fraudulent practices in certifying
the compliance of these vehicles to all applicable standards. In
contrast to these comments, three commenters were of the opinion that
NHTSA should rescind import eligibility for all Nissan Skyline
vehicles. Of these, one commenter believed the market for the Nissan
Skyline was too limited for businesses to spend the capital necessary
to re-engineer components required to fully comply with the FMVSS.
Agency Response: Because they were not originally manufactured to
comply with all applicable FMVSS, Nissan Skyline vehicles could not be
lawfully imported into the United States unless they were determined
eligible for importation, based on their capability of being modified
to conform to those standards. That is the case regardless of how safe
the commenters may believe the vehicles to be, and regardless of how
many Skyline vehicles may actually be operated on U.S. roads.
Although the agency's original import eligibility decision was
overly broad because it was based on the premise that all vehicles
within the 1990-1999 model years were built on the same platform and
were all equipped with air bags, the agency does not believe it is
necessary to entirely rescind import eligibility for all Skyline
vehicles. There is sufficient information of record for the agency to
conclude that certain of those models and model years are capable of
being modified to conform to all applicable standards within the
meaning of 49 U.S.C. 30141(a)(1)(B).
Although the agency has been informed that some Skyline owners have
been defrauded by unscrupulous enterprises operating outside the laws
and regulations that the agency administers, that is not the reason for
the partial rescission action. The partial rescission is instead based
on the receipt of new information from the vehicles' original
manufacturer that caused the agency to question the breadth of its
original eligibility decision.
b. Request To Delay Agency Decision
One commenter, who described himself as a member of the armed
forces, stated that he specifically requested a tour of duty in Japan
so that he could return to the United States with a Nissan Skyline.
This commenter requested the agency to delay the partial rescission for
12 to 24 months so he and other military personnel may import vehicles
before the rescission takes effect.
Agency Response: An agency decision to partially rescind import
eligibility for the Nissan Skyline would limit the model and model year
range of those vehicles that can be lawfully imported, but would not
render all Nissan Skyline vehicles ineligible for importation. This
should assure that returning service members and others would continue
to have a sufficient opportunity to import one of these vehicles. The
agency notes that it lacks the authority to create special exemptions
from the importation restrictions for any reason, including military
service.
c. Challenges To Information Supporting Partial Rescission
1. The Three Models Would Perform the Same in Crash Tests
Four commenters disagreed with the manufacturer's statement that
R32, R33, and R34 model vehicles differ in terms of their structural
design and restraint performance. The commenters acknowledge that there
are structural differences among the platforms, which they view as
minor, but predict that crash tests performed on each of those
platforms would yield identical results. Several commenters recommended
that the agency obtain the manufacturer's vehicle design documents to
confirm the differences claimed by the manufacturer.
Agency Response: The original manufacturer, Nissan, represented
that the R32, the R33, and the R34 models differ in terms of their
``structural design and restraint performance,'' and that each of the
models, which followed a chronological sequence, was ``newly designed
and different from the type preceding it.'' Nissan confirmed that the
company received official type approval from the Japanese government
for each model separately, and observed that it was ``highly likely
that each model type would perform differently in the crash tests
required by the FMVSS.'' The commenters have not provided any technical
basis for disputing Nissan's statements. Based on its review of the
petition and the petition's supporting information, including reports
of crash tests conducted on two R33 model Nissan Skyline vehicles, in
1999 the agency was persuaded that the petitioner had demonstrated that
the R33 model Nissan Skyline was capable of being altered to comply
with all applicable FMVSS. Aside from generally observing that the
three Skyline models would yield similar crash test results, none of
the commenters provided any sound evidence, such as crash test data, to
show that the R32 and R34 models are also capable of being brought into
compliance with all applicable FMVSS. There is nothing to refute the
original manufacturer's claim that the three models would be highly
likely to perform differently in dynamic crash tests. In light of the
manufacturer's statement that the three Skyline models would perform
differently in dynamic crash tests and the absence of crash test data
to support the commenters' claim that the three models would perform
the same, we decline to accept that claim.
2. Owner's and Parts Manuals Show Availability of Air Bags as Optional
Equipment in Early Models
One commenter stated that he obtained in Japan a 1992 Nissan
Skyline GTR owner's manual showing that an air bag was offered for the
vehicle. Additionally, this commenter stated that he purchased a parts
manual for a 1992 R32 model vehicle showing the part numbers for an air
bag. The commenter stated he was enclosing pages from both manuals with
his comment to the Docket, but did not do so. Based on the information
he reportedly found in the two manuals, the commenter requested
clarification of Nissan's statement that no driver's air bag was
offered for the R32 GTR model until February 1994, and that it was then
offered only as optional equipment.
Agency's Response: Based on the information provided by Nissan,
that manufacturer offered an air bag as optional equipment at the
driver's designated seating position on the R32 sedan and coupe
beginning in August 1991. We are aware that vehicle owner's manuals
often contain information covering optional equipment offered in a
vehicle model. The same holds true for parts manuals. While an air bag
was offered as early as August 1991 in the R32 sedan and coupe, Nissan
states that it did not offer the air bag in the R32 GTR until February
1994. We do not regard the commenter's information as refuting the
information provided by Nissan.
[[Page 10594]]
3. Optional R32 Air Bags Are Nearly Identical to R33 Air Bags
One commenter, an attorney representing a vehicle owner, claimed
that an air bag was available as a factory option on 1990-1993 R32
model Nissan Skyline vehicles. This commenter asserted that this
optional restraint system is nearly identical to that found in 1993-
1995 R33 model Nissan Skyline vehicles and employs the same sensors and
electronic control module. Although he conceded that there are
differences between the chassis of the R32 and later R33 models, the
commenter contended that the air bag systems installed in those models
are substantially similar, in terms of both their components and their
manner of operation, and observed that the R33 model was crash tested
by the RI that petitioned NHTSA to determine the vehicle eligible for
importation. The commenter also noted that 1990 to 1994 model vehicles
are not required to have an air bag to comply with the automatic crash
protection requirements of FMVSS No. 208, and may do so by means of an
automatic restraint such as a motorized seatbelt. As a consequence, the
commenter encouraged the agency to allow the original eligibility
determination to stand, but to permit an alternate means of achieving
compliance with FMVSS No. 208 (e.g., by adding automatic seatbelts).
Agency Response: Contrary to the commenter's contention,
information supplied to the agency by Nissan shows that no 1990 R32
model Skyline vehicles were manufactured with air bags at the driver's
designated seating position. It was not until August 1991 that Nissan
began offering, as optional equipment, air bags at the driver's
designated seating position in R32 model sedans and coupes. According
to Nissan, no R32 model Skyline was equipped with an air bag at the
passenger's designated seating position. With regard to the commenter's
observation that nearly identical restraint systems were available for
R32 and R33 model vehicles, the agency again notes Nissan's claim that
the R32, R33, and R34 models differ in terms of their ``structural
design and restraint performance,'' that each of the models was ``newly
designed and different from the type preceding it,'' and that it was
``highly likely that each model type would perform differently in the
crash tests required by the FMVSS.''
Addressing the commenter's suggestion that motorized seatbelts be
allowed as an alternate means of achieving compliance with FMVSS No.
208, the agency notes that the registered importer that petitioned
NHTSA to determine the Nissan Skyline eligible for importation
conducted crash tests on the vehicle after replacing its air bags with
ones manufactured to the petitioner's specifications. The petitioner
did not install motorized seatbelts in the vehicle to achieve
compliance with the standard. Moreover, Nissan informed the agency that
automatic seatbelts were not installed as original equipment in the
1990-1999 Skyline models, and no dynamic crash test data is available
to demonstrate that such a vehicle equipped with automatic seatbelts
would comply with FMVSS No. 208. The mere statement that equipment such
as automatic seatbelts could be added to a vehicle is not sufficient to
prove that the vehicle is capable of being altered to comply with FMVSS
No. 208, as would be required to establish that the vehicle is eligible
for importation under 49 U.S.C. 30141(a)(1)(B). Such proof could only
be obtained by conducting a crash test that replicates how the vehicle
structures and restraint systems perform in a crash.
4. Agency's Reliance on Manufacturer's Comments Is Inconsistent With
Past Import Eligibility Decision Practices
Another commenter, a registered importer, observed that because
Nissan had every opportunity to comment on the original import
eligibility petition covering 1990-1999 Nissan GTS and GTR passenger
cars, but elected not to do so, the manufacturer in effect conceded
that no adverse safety impact would result from the granting of this
petition. Noting that NHTSA received information from the manufacturer
after the petition was granted, the commenter recommended that the
agency officially announce, in the Federal Register notices that it
publishes to solicit comments on future petitions, that it will ask
manufacturers to assess the sufficiency of the proposed modifications
identified by the petitioner. In particular, the commenter faulted the
agency for accepting Nissan's statements that the R32, R33, and R34
model vehicles are sufficiently distinct that they are likely to yield
different crash test results. The commenter noted that NHTSA has
disregarded manufacturer's comments in ruling on past petitions. The
commenter further noted that NHTSA personnel have previously stated
that minor differences in overall wheelbase would not have an overall
impact on a vehicle's crashworthiness unless weight differences of more
than 500 pounds were involved.
Agency response: The agency does not believe that any conclusion or
inference can be drawn from the fact that Nissan did not comment on the
original eligibility petition for Nissan Skyline vehicles. Regarding
the manner in which NHTSA obtained information from Nissan in this
instance, the agency notes that it asked the manufacturer to provide
vehicle production data on Skyline vehicles as part of an investigation
unrelated to the original petition. Based on the information furnished
by the manufacturer (such as the fact that air bags were not installed
as original equipment on 1990 R32 models), the agency re-evaluated the
eligibility decision. Contrary to the commenter's observation, the
agency was not constrained from re-evaluating this decision on account
of past instances in which it has granted import eligibility to a
particular vehicle despite objections from the vehicle's original
manufacturer.
The information furnished by Nissan, which NHTSA did not have when
it granted the original petition, compelled the agency to conclude that
the petitioner did not adequately demonstrate that R32 and R34 model
Skyline vehicles are capable of being modified to comply with all
applicable FMVSS. In these circumstances, it was not appropriate for
the agency to let its earlier import eligibility decision stand.
Accordingly, NHTSA undertook to modify that decision prospectively by
limiting import eligibility to R33 model vehicles in which both
required air bags are installed as standard equipment. However, RIs are
free to petition the agency to decide whether any other model or model
year Skyline vehicle is eligible for importation.
Unlike past instances in which a single eligibility decision has
covered vehicles with minor differences in overall wheelbase, in this
instance, the Nissan Skyline was produced in three distinct models over
the 1990 through 1999 model years. In view of Nissan's statement that
the three models differ in terms of their ``structural design and
restraint performance,'' and would be ``highly likely to perform
differently in the crash tests required by the FMVSS,'' NHTSA cannot
justify maintaining import eligibility for the three models based on
data submitted for one model alone.
5. Import Eligibility Should Be Retained for 1995 R33 Model Skyline
Vehicles
Six commenters asked the agency to retain import eligibility for
1995 R33 model Nissan Skyline vehicles. The commenters noted that the
body style of the 1995 R33 model is exactly the same
[[Page 10595]]
as the R33 models produced from 1996 to 1998. The commenters further
observed that some of the 1995 R33 model vehicles were equipped with an
optional air bag at the passenger's designated seating position. The
commenters noted that even though Nissan is unable to advise the agency
whether any particular vehicle was manufactured with an optional air
bag, agency personnel might verify the air bag's presence by performing
a vehicle inspection.
The commenters further contended that 1995 models that were not
originally equipped with an air bag at the passenger's designated
seating position are capable of being retrofitted with readily
available components. One commenter stated that a dual supplemental
restraint system (SRS) could be installed in those vehicles. As
described by the commenter, this system would include a complete dash,
a passenger's air bag module, a dual SRS wire harness, and a dual SRS
electronic control unit.
Another commenter contended that it is possible to retrofit 1995
Skyline vehicles with dual air bags, because these vehicles were
originally designed to accept the optional passenger air bag on the
assembly line. The commenter claimed that the steering column, the
wiring harness, and air bag system mounting brackets are identical on
1995 R33 model vehicles, regardless of whether they were originally
equipped with or without the optional passenger air bag. The commenter
further contended that the components needed to add the air bag at the
passenger's designated seating position (e.g., rear SRS control unit
mount and dashboard pad with blow out panel) could be readily purchased
from the manufacturer and retrofitted to the vehicle.
Agency response: The original petition stated that to achieve
compliance with FMVSS No. 208, the driver's air bags on 1990-1993
models, and the driver's and passenger's air bags on 1994-1999 models,
would need to be replaced with components manufactured to the
petitioner's specifications. The petition did not address the fact that
many Skyline vehicles within the covered range of model years never had
air bags installed as original equipment and that those components
could therefore not be ``replaced'' in the manner described. Because it
has no way to reliably determine whether any particular 1995 model
Skyline vehicle was originally equipped with a passenger air bag, the
agency is unwilling to retain import eligibility for that model year.
With regard to the suggestion that 1995 vehicles be inspected to
determine whether air bags are installed, our regulations at 49 CFR
594.7(e) require the payment of $827 when agency personnel inspect a
vehicle. The agency does not have the resources that would be needed to
inspect each 1995 vehicle that may be imported.
Only vehicles originally manufactured with all required air bags
are within the scope of the original eligibility decision. Without the
benefit of data, views, and arguments equivalent to what is needed to
support an eligibility petition, the agency is unable to determine
whether a 1995 R33 model Skyline vehicle that was not originally
equipped with one or more required air bags may be properly retrofitted
with an air bag system. Based on the information furnished by Nissan,
our only assurance is that R33 model Skyline vehicles manufactured
beginning in January 1996, which had dual air bags installed as
standard equipment, can be modified in the manner described in the
original eligibility petition.
6. Requested Relief for Vehicles Already Imported
Ten commenters stated that they had purchased Nissan Skyline
vehicles in good faith and lawfully imported those vehicles for
personal use in reliance on the agency's existing import eligibility
determination. These commenters requested the agency to grant a one-
time waiver from the requirements of standards the vehicles have not
been proven to meet. Given the limited number of vehicles that fall
into this category, the commenters contended that the granting of such
a waiver would have a negligible impact on motor vehicle safety. In
exchange for any such waiver, several commenters offered to accept
certain conditions, such as those limiting on-road use, restricting the
resale of the vehicle, and releasing the agency from liability for
injuries that could result from operating a vehicle that does not
comply with all applicable standards.
One commenter asked the agency to consider exempting from the air
bag requirements vehicles already imported and in the custody of a
registered importer. This commenter observed that the agency has
previously granted financial hardship exemptions from the requirements
of FMVSS No. 208 to five manufacturers, including Saleen, Bugatti,
Shelby America, Laforza, and Spyker. The commenter also observed that
the agency also granted permission to a vehicle owner to deactivate an
air bag based on a medical condition, even though the vehicle's
registered importer did not properly install a required air bag.
Agency response: An agency decision to partially rescind import
eligibility for Nissan Skyline vehicles would only be effective
prospectively, and would not affect the legality of the importation of
those vehicles under the prior eligibility decision. As previously
noted, NHTSA granted import eligibility to 1990-1999 Nissan GTS and GTR
``Skyline'' passenger cars on the basis of a representation in the
original petition that the vehicle's airbags would be ``replaced'' with
components manufactured to the petitioner's specifications. Because no
comments were submitted in response to the notice of petition, this
representation was not refuted. It was only later that the agency
learned, through an investigation, that air bags were only installed as
standard equipment on a limited range of vehicles produced within the
models years covered by the petition. NHTSA has not released the DOT
Conformance bonds on a number of Skyline vehicles that were not
originally manufactured with required air bags, for want of evidence
that those vehicles have been altered to comply with FMVSS No. 208 in
the manner described in the petition. Comments relating to disposition
of these and other vehicles already imported under the prior decision
are outside the scope of this decision. Nevertheless, the agency is
willing to consider, on a case-by-case basis, the concerns of those
owning Skyline vehicles that were lawfully imported under the original
eligibility decision but have yet to be bond released by NHTSA.
We have considered the commenters' suggestions in light of the
agency's authority under the laws and regulations that it administers.
One commenter suggested that the agency grant owners of the affected
vehicles exemptions from one or more applicable FMVSS, such as those
granted to manufacturers under 49 U.S.C. 30113 and 49 CFR Part 555. As
specified in those provisions, these exemptions can only be granted to
a manufacturer, and only in circumstances where compliance with a
standard would cause substantial economic hardship to a manufacturer
that has tried in good faith to comply with the standard. The agency
lacks the authority to grant such an exemption to any other party.
Although a registered importer may file with the agency a petition for
a temporary exemption under Part 555, as explained in the agency's
interpretations, the agency would regard such a petition as being filed
on behalf
[[Page 10596]]
of the foreign manufacturer, and would consider the circumstances of
the manufacturer, and not the importer, in deciding whether to grant
the petition. Moreover, since an exemption under Part 555 would only
apply to vehicles originally manufactured after the date the exemption
is granted, used vehicles could not benefit from such an exemption.
One commenter also suggested that the agency grant owners of
vehicles that cannot be modified to conform to the air bag requirements
of FMVSS No. 208 an exemption similar to the one described in 49 CFR
595.5. This provision enables motor vehicle dealers or repair
businesses to install retrofit air bag on-off switches without
violating the prohibition in 49 U.S.C. 30122 against making inoperative
safety equipment installed in a vehicle in compliance with an
applicable standard. This regulation applies to a limited and narrowly
tailored set of circumstances. The regulation seeks to preserve the
benefits of air bags, while providing a means for reducing the risk of
serious or fatal injury that air bags pose to identifiable groups of
people, such as people who cannot avoid sitting extremely close to air
bags by reason of their short stature, people with certain medical
conditions, and young children. To obtain permission for the
installation of an on-off switch, the vehicle owner must certify that
the owner or another user of the vehicle is a member of one of the at-
risk groups. This regulation, which pertains to the prohibition on
making safety equipment inoperative in 49 U.S.C. 30122, has no bearing
on import eligibility decisions under 49 U.S.C. 30141(a)(1)(B).
Several commenters offered to limit their vehicles' on-road use, to
restrict the resale of their vehicles, or to release the agency from
liability resulting from the vehicles' noncompliance in exchange for a
waiver from compliance with one or more applicable standards.
Addressing the offer to release the agency from liability, the agency
notes that it is not subject to suit for exercising governmental
functions of this kind. The remaining conditions are similar to ones
imposed on the owners of vehicles imported for purposes of show or
display under 49 CFR 591.5(j)(1). A vehicle cannot be imported for
purposes of show or display unless it is found by the agency to have
such historical or technological significance that it is worthy of
being imported for those purposes. As a general rule, a vehicle is
ineligible for importation for purposes of show or display if more than
500 of the vehicles were produced, or if the vehicle has been found
eligible for importation under 49 CFR Part 593, based on its capability
of being modified to conform to all applicable standards. For these
reasons, the agency has previously denied an application for the
importation of a 1995 Nissan Skyline GTS-T under the show or display
provisions. To be consistent with its past administration of these
provisions, the agency remains unwilling to extend show or display
status to Nissan Skyline vehicles. Moreover, the agency lacks the
authority to impose mileage or resale restrictions on vehicles imported
for any other purpose.
Final Decision
Accordingly, on the basis of the foregoing, NHTSA hereby rescinds
its decision, granted on November 15, 1999, that 1990-1999 Nissan GTS
and GTR Passenger cars are eligible for importation into the United
States. NHTSA hereby decides that Nissan R33 model GTS and GTR
passenger cars manufactured between January 1996 and June 1998 are
eligible for importation into the United States because they have
safety features that comply with, or are capable of being altered to
comply with, all applicable Federal motor vehicle safety standards.
Vehicle Eligibility Number
The importer of a vehicle admissible under any import eligibility
decision must enter on the HS-7 Declaration form covering the entry the
appropriate vehicle eligibility number indicating that the vehicle is
eligible for importation. Vehicle eligibility number VCP-17 was
assigned to 1990-1999 Nissan GTS and GTR passenger cars. NHTSA is
rescinding that eligibility number and assigning eligibility number
VCP-32 to Nissan R33 model GTS and GTR passenger cars manufactured
between January 1996 and June 1998 that remain eligible for
importation.
Authority: 49 U.S.C. 30141(a)(1)(B) and (b)(1); 49 CFR 593.8;
delegations of authority at 49 CFR 1.50 and 501.8.
Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 06-1896 Filed 2-28-06; 8:45 am]
BILLING CODE 4910-59-P