E5-6530. Notice of Tentative 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:

Notice of tentative decision to partially rescind decision that nonconforming 1990-1999 Nissan GTS and GTR passenger cars are eligible for importation.

SUMMARY:

This document provides notice that NHTSA has tentatively decided to partially rescind its decision 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. If NHTSA makes this rescission, Nissan R33 model GTS and GTR passenger cars manufactured between January 1996 and June 1998 would be eligible for importation following the decision; the others would not be eligible for importation following the decision.

DATES:

The closing date for comments on the tentative decision is December 28, 2005.

ADDRESSES:

Comments should refer to the docket number and notice number, and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. [Docket hours are from 9 a.m. to 5 p.m.] 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 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

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 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 destructive 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. The agency then publishes this decision in the Federal Register.

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 and passenger's air bags on 1994-1999 models, would need to be replaced with components manufactured to petitioner's specifications based on the results of dynamic 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 its decision. The agency published notice of the decision on January 19, 2000 (65 FR 3002).

The agency has obtained information from Nissan North America, Inc., on behalf of Nissan Motor Company, LTD (Nissan) of Tokyo, Japan, the manufacturer of Nissan 1990-1999 Nissan GTS and GTR passenger cars. 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 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 and the front passenger's seating positions on the R32, the R33, and the R34 model vehicles.

The agency did not have this information from Nissan 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, in its overall context, the original petition suggested were representative. 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 the front passenger's seating positions with components manufactured to its own specifications. 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 no test data was provided to the agency.

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 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 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 the air bags installed when those air bags were offered as optional equipment. The agency can only be assured that R33 vehicles, produced by Nissan beginning in January 1996, will have both driver and passenger's air bags installed as original equipment.

On the basis of the foregoing, NHTSA has 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 has tentatively decided to rescind that decision in part. If it makes this rescission, only Nissan R33 model GTS and GTR passenger cars manufactured between January 1996 and June 1998 will be eligible for importation in the future.

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 is currently assigned to 1990-1999 Nissan GTS and GTR passenger cars. If this tentative decision is made final, NHTSA will rescind that eligibility number and assign a new eligibility number to Nissan GTS and GTR passenger cars manufactured between January 1996 and June 1998 that are to remain eligible for importation.

Interested persons are invited to submit comments on the tentative decision described above. Comments should refer to the docket number and be submitted to: Docket Management, Room PL-401, 400 Seventh St., SW., Washington, DC 20590. It is requested but not required that 10 copies be submitted.

All comments received before the close of business on the closing date indicated above will be considered, and will be available for examination in the docket at the above address both before and after that date. To the extent possible, comments filed after the closing date will also be considered. Notice of final action will be published in the Federal Register pursuant to the authority indicated below.

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.

Issued on: November 21, 2005.

Claude H. Harris,

Director, Office of Vehicle Safety Compliance.