01-10113. Decision that Nonconforming 1999-2000 Mercedes Benz Gelaendewagen Multi-Purpose Passenger Vehicles are Eligible for Importation

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Notice of decision by NHTSA that nonconforming 1999-2000 Mercedes Benz Gelaendewagen multi-purpose passenger vehicles (MPVs) are eligible for importation.

SUMMARY:

This notice announces the decision by NHTSA that 1999-2000 Mercedes Benz Gelaendewagen MPVs 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 such standards.

DATES:

This decision is effective as of the date of its publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

George Entwistle, Office of Vehicle Safety Compliance, NHTSA (202-366-5306).

SUPPLEMENTARY INFORMATION:

Background

Under 49 U.S.C. section 30141(a)(1)(A), a motor vehicle that was not originally manufactured to conform to all applicable Federal motor vehicle safety standards 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. section 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 Federal motor vehicle safety standards. Where there is no substantially similar U.S.-certified motor vehicle, 49 U.S.C. section 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 Federal motor vehicle safety standards based on destructive test data or such other evidence as 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 (formerly J.K. Motors) of Baltimore, Maryland (“J.K.”) (Registered Importer 90-006) petitioned NHTSA to decide whether 1999-2000 Mercedes Benz Gelaendewagen MPVs are eligible for importation into the United States. NHTSA published notice of the petition on July 19, 2000 (65 FR 44848) to afford an opportunity for public comment. The reader is referred to that notice for a thorough description of the petition.

J.K. petitioned the agency to decide that the 1999-2000 Mercedes Benz Gelaendewagen is eligible for importation under 49 U.S.C. section 30141(a)(1)(A) on the basis that those vehicles are substantially similar to motor vehicles of the same model year that were originally manufactured for importation into and sale in the United States and certified under 49 U.S.C. section 30115. The substantially similar motor vehicles identified in the petition were 1999-2000 Mercedes Benz Gelaendewagens that were manufactured for importation into, and sale in, the United States, and certified by Europa International, Inc. (“Europa”), as conforming to all applicable Federal motor vehicle safety standards prior to their importation into the United States.

The notice of petition explained that in March 1998, Daimler Benz, A.G., as the company was then known, provided a letter of understanding to Europa under which Gelaendewagens manufactured in Graz, Austria, would be produced to Europa's specifications, and then shipped to a Mercedes facility in Germany for installation of additional electronic equipment (OBD II) needed to effect compliance with Federal emissions control requirements. DaimlerChrysler A.G. modified the letter of understanding in December 1999 to state that incomplete vehicles, for which it would make no representation of compliance, would be sent to the German facility for completion. At the end of either process, Europa certifies compliance with all applicable Federal requirements of the Department of Transportation and the Environmental Protection Agency.

The notice of petition stated that under these factual circumstances, Europa could be regarded as the “manufacturer” of the Gelaendewagens that it has certified to U.S. standards, permitting J.K. to petition for an eligibility determination on the basis that the Gelaendewagens it wishes to import are substantially similar to vehicles certified by their original manufacturer for sale in the United States.

One comment was received in response to the notice of petition, from Europa, which described itself as the “final stage manufacturer” of 1999 and subsequent model year Gelaendewagens that it has imported into the United States. In this comment, Europa contended that J.K. did not establish in its petition that nonconforming 1999-2000 Gelaendewagens are eligible for importation. Europa expressed disagreement with the petition's assertion that 1999-2000 Gelaendewagens are identical to their U.S. certified counterparts with respect to all of the Federal motor vehicle safety standards identified in the notice of petition. Additionally, Europa stated that it performs a significant amount of work to conform Gelaendewagens to Standard Nos. 108, Lamps, Reflective Devices, and Associated Equipment, and 208, Occupant Crash Protection. In apparent reference to the fact that J.K. had requested, and been granted confidentiality with respect the engineering modifications it planned to make to conform the vehicles to those standards, Europa observed that in the absence of information on those modifications, it could reach no decision on whether they would achieve the intended result.

After receiving this comment, NHTSA requested Europa to state its objections with greater specificity. With this request, NHTSA informed Europa that the modifications that J.K. was proposing to conform 1999-2000 Gelaendewagens to Standard Nos. 108 and 208 were identical to ones Europa had described in import eligibility petitions it had submitted on earlier models of the vehicle.

Europa responded to NHTSA's request that it provide more specific comments on the petition. In this response, Europa observed that the petition incorrectly stated that the 1999-2000 Gelaendewagens were originally manufactured to conform to Standard Nos. 105, Hydraulic and Electric Brake Systems, 206, Door Locks and Door Retention Components, and 301, Fuel System Integrity. Europa stated that the vehicle was modified to meet those standards. In addition, Europa noted that the petition identified only one modification to conform the vehicles to Standard No. 111 Rearview Mirrors (adding warning text to the passenger side mirror), and contended that additional modifications, which it did not specify, were necessary to bring the vehicles into full compliance with that standard. Europa concluded its response by reiterating the belief that the petition does not establish that nonconforming 1999-2000 Gelaendewagens are eligible for importation.

NHTSA accorded J.K. an opportunity to respond to Europa's comments. In its response, J.K. stated that to achieve compliance with the marking requirements of Standard No. 105, it planned to replace the brake fluid reservoir cap on the nonconforming 1999-2000 Gelaendewagens with a U.S.-model cap on which the information required by the standard is embossed. J.K. further acknowledged that its petition failed to identify the modifications that are necessary to conform the vehicles to the rear door locking requirements of Standard No. 206. J.K. stated that it intends to partially disable the rear door lock mechanisms so that those locks conform to the standard.

NHTSA furnished Europa with a copy of J.K.'s response and asked it to elaborate on its previous comments and identify any additional modifications necessary to conform 1999-2000 Gelaendewagens to Standard Nos. 105, 111, 206, and 301. Europa responded by stating that it had no additional comments to make with regard to the petition.

J.K. subsequently informed NHTSA that it wished to change the basis for its petition from 49 U.S.C. section 30141(a)(1)(A) to 49 U.S.C. section 30141(a)(1)(B). As such, the petition would no longer be grounded on the contention that the 1999-2000 Gelaendewagens that J.K. sought to import were substantially similar to the vehicles of the same model and model years that had been certified by Europa as conforming to all applicable Federal motor vehicle safety standards prior to their importation into the United States. Instead, J.K. elected to proceed on the basis that the 1999-2000 Gelaendewagens that it sought to import have safety features that comply with, or are capable of being altered to comply with, all applicable Federal motor vehicle safety standards. J.K. supplied NHTSA with documentation demonstrating that the modifications it plans to make to 1999-2000 Gelaendewagens are identical to those identified by Europa in its import eligibility petition for the 1998 model year Gelaendewagen, which was granted by the agency.

In view of these developments, NHTSA has decided to grant the petition.

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-18 is the vehicle eligibility number assigned to vehicles admissible under this notice of final decision.

Final Decision

Accordingly, on the basis of the foregoing, NHTSA hereby decides that 1999-2000 Mercedes Benz Gelaendewagen MPVs 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)(B) and (b)(1); 49 CFR 593.8; delegations of authority at 49 CFR 1.50 and 501.8.

Issued on: April 18, 2001.

Marilynne Jacobs,

Director, Office of Vehicle Safety Compliance.