71 FR 140 pgs. 41509-41513 - Decision That Nonconforming 2002 Through 2004 Smart Car Fortwo Coupe and Cabriolet (Including Trim Levels Passion, Pulse and Pure) Passenger Cars Are Eligible for Importation

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket Nos. NHTSA-2003-15428 and NHTSA-2003-16401]

Decision That Nonconforming 2002 Through 2004 Smart Car Fortwo Coupe and Cabriolet (Including Trim Levels Passion, Pulse and Pure) Passenger Cars Are Eligible for Importation

AGENCY:

National Highway Traffic Safety Administration, DOT.

ACTION:

Notice of decision by the National Highway Traffic Safety Administration that nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet (including trim levels Passion, Pulse and Pure) passenger cars are eligible for importation.

SUMMARY:

This notice announces the decision by NHTSA that 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet (including trim levels Passion, Pulse and Pure) passenger cars not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS) 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 FMVSS.

DATES:

This decision was effective January 1, 2004. The agency notified the petitioners at that time that the subject vehicles are eligible for importation. This document provides public notice of the eligibility decision.

FOR FURTHER INFORMATION CONTACT:

Coleman Sachs, Office of Vehicle Safety Compliance, NHTSA (202-366-3151).

SUPPLEMENTARY INFORMATION:

Background

Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable 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 as required 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 destructive test data or such other evidence that NHTSA decides to be 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. The agency then publishes this decision in the Federal Register .

J.K. Technologies, LLC of Baltimore, Maryland ("JK") (Registered Importer 90-006) and GK Automotive Conversion, Inc. of Santa Ana, California ("GK") (Registered Importer 90-007) separately petitioned NHTSA to decide whether certain Smart Car Fortwo Coupe and Cabriolet passenger cars are eligible for importation into the United States. NHTSA published notice of the JK petition on June 20, 2003 (68 FR 37040) and of the GK petition on November 3, 2003 (68 FR 62343), to afford an opportunity for public comment. The reader is referred to those notices for a thorough description of the petitions. After considering the two petitions, NHTSA decided to issue a single eligibility decision covering all vehicle model years and configurations that were the subject of those petitions.

Two substantive comments were received in response to the notice published on the JK petition. No comments were received in response to the notice on the GK petition.

The comments and NHTSA's analysis are set forth below for each of the issues raised in the comments, as well as issues identified by NHTSA in its review of the two petitions.

Thomas Heidermann of Smart Automobile, Inc., through its counsel, Ginsburg Hlywa, submitted a comment contending that JK had failed to demonstrate that the subject vehicles comply with, or are capable of being modified to comply with FMVSS Nos. 108 Lamps, Reflective Devices, and Associated Equipment, 206 Door Locks and Door Retention Components, 214 Side Impact Protection, and 301 Fuel System Integrity. JK filed with the agency a request for confidentially under 49 CFR part 512, Confidential Business Information, seeking to protect from public disclosure most of the data, views and arguments that it had submitted as part of its petition. Consequently, test data and reports that were part of that submission were not originally posted to the public docket. After NHTSA's Office of Chief Counsel decided to deny confidentially to the test data and reports submitted by JK for FMVSS Nos. 108, 206, 214, and 301, as well as other standards, the materials were posted to the public docket under docket number NHTSA-2003-15428.

An anonymous commenter argued that confidentiality should not be granted to the test procedures and test results submitted by JK. As previously stated, those materials were not accorded confidentiality by the agency.

Each of the two petitions claimed that the subject vehicles were originally manufactured to conform to Standard Nos. 103 Defrosting and Defogging Systems, 104 Windshield Wiping and Washing Systems, 106 Brake Hoses, 109 New Pneumatic Tires, 116 Brake Fluid, 118 Power Window Systems, 124 Accelerator Control Systems, 202 Head Restraints, 205 Glazing Materials, 207 Seating Systems, 210 Seat Belt Assembly Anchorages, 212 Windshield Retention, and 219 Windshield Zone Intrusion. NHTSA concluded that sufficient data, views, and arguments were submitted in the aggregate by the two petitioners to establish that the vehicles do conform to these standards as originally manufactured.

The two petitions did initially differ with regard to their claims that the subject vehicles could be modified to conform to the standards specified below. However, sufficient data, views, and arguments were ultimately submitted by the two petitioners to establish in the aggregate that the vehicles could be modified to conform to these standards. The differences between the two petitions, as well as NHTSA's analysis of their contents, are described below with regard to each standard for which alterations were identified as being required.

(1) FMVSS No. 101Controls and Displays

Alterations identified in JK petition: (a) Inscription of the word "Brake" on the dash in place of the international ECE warning symbol; (b) replacement of the speedometer with one that reads in miles per hour. The petitioner stated that it has fabricated a new instrument cluster face for the vehicles, available only through J.K. Technologies, which will allow the vehicles to achieve compliance with the standard.

Alterations identified in GK petition: (a) Inscription of the word "Brake" and a seat belt warning symbol on the dash; (b) modification of the speedometer to read in miles per hour. The petitioner stated that the controls and displays are visible and accessible to the driver while restrained by a lap and shoulder belt, that controls for the headlamps, the windshield defrosting and defogging system, and the windshield wiping system and panel are all identified, and that all required controls are illuminated.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(2) FMVSS No. 102Transmission Shift Lever Sequence, Starter Interlock, and Transmission Breaking Effect

Alterations identified in JK petition: Installation of a redesigned starter interlock assembly, available only through J.K. Technologies, which was designed to allow the vehicles to comply with Standard No. 114, will also achieve compliance with Standard No. 102. The petition did not describe how this assembly was redesigned.

Alterations identified in GK petition: Modification of the shift lever markings, the shift pattern, the starter interlock, and the automatic transmission braking effect to achieve compliance with this standard. The petition did not describe these modifications, for which GK claimed confidentiality.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(3) FMVSS No. 108Lamps, Reflective Devices, and Associated Equipment

Alterations identified in JK petition: Modification of the headlamp and marker light systems to meet this standard. These modifications are not described in the petition.

Alterations identified in GK petition: (a) Modification of the headlamp to meet the standard and (b) installation of side markers. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter to NHTSA dated March 21, 2005, GK stated that the headlamps will be replaced with U.S.-model components that have been certified as meeting all applicable requirements of FMVSS No. 108. In a letter dated May 16, 2005, GK stated that the turn signal lamps will also be replaced with U.S.-model components that have been certified as meeting all applicable requirements of the standard.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(4) FMVSS No. 110Tire Selection and Rims

Alterations identified in JK petition: Installation of a tire information placard as part of the certification label to be affixed to the vehicles upon the completion of required modifications to achieve conformity with applicable standards.

Alterations identified in GK petition: Installation of a tire information placard.

NHTSA's AnalysisNHTSA has determined that the installation of a tire information placard to meet the requirements of the standard would not prelude the vehicles from being deemed eligible for importation.

(5) FMVSS No. 111Rearview Mirrors

Alterations identified in JK petition: Replacement of the passenger side rearview mirror with a mirror fabricated by, and available only through, J.K. Technologies, which will have the required warning statement on the mirror's face.

Alterations identified in GK petition: Inscription of the required warning statement on the face of the passenger side rearview mirror.

NHTSA's Analysis

NHTSA has determined that the installation of a replacement passenger side mirror or the modification of the existing mirror to meet the requirements of the standard would not prelude the vehicles from being deemed eligible for importation.

(6) FMVSS No. 114Theft Protection

Alterations identified in JK petition: Installation of a redesigned starter interlock assembly to meet this standard. The petition did not describe how the assembly was redesigned.

Alterations identified in GK petition: Modification of the key locking system to meet this standard. The petition did not describe these modifications, for which GK claimed confidentiality.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(7) FMVSS No. 135Passenger Car Brake Systems

JK petition: The vehicles conform to the standard as manufactured.

Alterations identified in GK petition: Modification of the hydraulic brake system and the parking brake system through the installation of components available only from GK. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter dated March 21, 2005, GK stated that no modifications were made to the vehicle prior to its FMVSS No. 135 testing.

NHTSA's Analysis

NHTSA has concluded that the subject vehicles were shown to meet the requirements of the standard as originally manufactured.

(8) FMVSS No. 201Occupant Protection in Interior Impact

Alterations identified in JK petition: Replacement of interior components with components fabricated by, and available only through, J.K. Technologies. JK claimed confidentiality with respect to these modifications.

Alterations identified in GK petition: Replacement of interior components with components fabricated by, and available only through, GK. The petition did not describe these components or their manner of installation. GK claimed confidentiality with respect to these modifications.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(9) FMVSS No. 204Steering Control Rearward Displacement

Alterations identified in JK petition: Modification of the steering shaft to meet the standard. This modification is not described in the petition.

GK petition: The vehicles must be modified to meet the standard. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter dated March 21, 2005, GK stated that no modifications were made to the vehicle prior to its FMVSS No. 204 testing.

NHTSA's Analysis

NHTSA concluded that the subject vehicles were shown to meet the requirements of the standard as originally manufactured.

(10) FMVSS No. 206Door Locks and Door Retention Components

JK petition: The vehicle conforms to the standard as originally manufactured.

Alterations identified in GK petition: Modification of the door locks and door retention components to meet the standard. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter dated March 21, 2005, GK stated that no modifications were made to the vehicle prior to its FMVSS No. 206 testing.

NHTSA's Analysis

NHTSA concluded that the subject vehicles were shown to meet the requirements of the standard as originally manufactured.

(11) FMVSS No. 208Occupant Crash Protection

Alterations identified in JK petition: The vehicles must be modified to meet this standard. These modifications were not described in the petition.

Alterations identified in GK petition: The vehicles must be modified to meet this standard. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter dated March 21, 2005, GK stated that the air bags were not removed or replaced prior to its FMVSS No. 208 testing.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(12) FMVSS No. 209Seat Belt Assemblies

Alterations identified in JK petition: Modification of the seat belt systems to accommodate a seat belt switch. This modification was not described in the petition.

Alterations identified in GK petition: Modification of the seat belt systems to meet this standard. The petition did not describe the modification, for which GK claimed confidentiality.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(13) FMVSS No. 214Side Impact Protection

Alterations identified in JK petition: Modification of the vehicles' A-pillars, B-pillars, and doors. These modifications are not described in the petition.

Alterations identified in GK petition: Modification of the vehicles through the installation of components available only from GK. The petition did not describe the modifications, for which GK claimed confidentiality.

NHTSA's Analysis

The modifications that JK and GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(14) FMVSS No. 216Roof Crush Resistance

JK petition: The vehicles conform to this standard as originally manufactured.

Alterations identified in GK petition: The vehicles must be modified to meet this standard. The petition did not describe these modifications, for which GK claimed confidentiality. In a letter dated March 21, 2005, GK stated that no modifications were made to the vehicle prior to FMVSS No. 216 testing.

NHTSA's Analysis

NHTSA has concluded that the subject vehicles were shown to meet the requirements of the standard as originally manufactured.

(15) FMVSS No. 225Child Restraint Anchorage Systems

JK petition: The petition did not identify any modifications required to conform the vehicles to the standard.

Alterations identified in GK petition: Installation of a U.S.-model tether anchorage behind the passenger seat on coupe models is needed to achieve conformity.

NHTSA's Analysis

The modifications that GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(16) FMVSS No. 301Fuel System Integrity

Alterations identified in JK petition: Modification of the vehicles' fuel system to meet this standard. JK stated that fuel spillage problems are controlled by the evaporative and ORVR systems, which have a rollover and check valve incorporated into their design and have been proven in testing.

Alterations identified in GK petition: Modification of the vehicles' fuel system through the installation of components available only from GK. The petition did not describe these modifications, for which GK claimed confidentiality.

NHTSA's Analysis

The modifications identified as needed to conform the vehicles to the standard would not prelude the vehicle from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(17) FMVSS No. 302Flammability of Interior Materials

JK petition: The vehicles conform to the standard as originally manufactured.

Alterations identified in GK petition: Interior materials and components covered by the standard must be treated with a product available only from GK. GK claimed confidentiality with respect to these modifications.

NHTSA's Analysis

The modifications that GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with components that allow it to achieve compliance with the standard. Any modification or replacement of components necessary to meet the requirements of the standard must be shown to bring the vehicle into compliance. Such proof must be submitted by an RI as part of any conformity package submitted for nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet passenger cars.

(10) 49 CFR Part 581Bumper Standard

Alterations identified in JK petition: Modification of the bumper system to comply with the Bumper Standard found in 49 CFR part 581. The petition did not describe the modifications.

Alterations identified in GK petition: Modification of the bumper system through installation of components available only from GK. The petition did not describe the modifications.

NHTSA's Analysis

The modifications that GK identified as needed to conform the vehicles to the standard would not prelude the vehicles from being deemed eligible for importation. The agency notes that Bumper Standard compliance issues are not directly relevant to an import eligibility decision, as such a decision is to be based on the capability of a non-U.S. certified vehicle to be altered to conform to the FMVSS, and the Bumper Standard is not an FMVSS. However, because a vehicle that is not originally manufactured to comply with the Bumper Standard must be modified to comply with the standard before it can be admitted permanently into the United States, conformance with the Bumper Standard must be shown in the conformity package submitted to NHTSA to allow release of the DOT conformance bond furnished at the time of vehicle importation.

Conclusion

In view of the above considerations, NHTSA decided to grant the petitions.

Vehicle Eligibility Number for Subject Vehicles

The importer of a vehicle admissible under any final decision must indicate on the form HS-7 accompanying entry the appropriate vehicle eligibility number indicating that the vehicle is eligible for entry. VCP-27 is the vehicle eligibility number assigned to nonconforming 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet (including trim levels Passion, Pulse and Pure) passenger cars admissible under this notice of final decision.

Final Decision

Accordingly, on the basis of the foregoing, NHTSA decided that 2002 through 2004 Smart Car Fortwo Coupe and Cabriolet (including trim levels Passion, Pulse and Pure) passenger cars that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards 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.

Authority:

49 U.S.C. 30141(a)(1)(A) 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. E6-11634 Filed 7-20-06; 8:45 am]

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