[Federal Register Volume 71, Number 140 (Friday, July 21, 2006)]
[Notices]
[Pages 41509-41513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11634]


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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.

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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

[[Page 41510]]

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 G&K Automotive Conversion, Inc. of Santa Ana, 
California (``G&K'') (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 G&K 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 G&K 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. 101 Controls 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 G&K 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 G&K 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. 102 Transmission 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 G&K 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 
G&K claimed confidentiality.
NHTSA's Analysis
    The modifications that JK and G&K 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

[[Page 41511]]

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. 108 Lamps, 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 G&K 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 G&K claimed 
confidentiality. In a letter to NHTSA dated March 21, 2005, G&K 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, G&K 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 G&K 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. 110 Tire 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 G&K petition: Installation of a tire 
information placard.
NHTSA's Analysis NHTSA 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. 111 Rearview 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 G&K 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. 114 Theft 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 G&K petition: Modification of the key 
locking system to meet this standard. The petition did not describe 
these modifications, for which G&K claimed confidentiality.
NHTSA's Analysis
    The modifications that JK and G&K 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. 135 Passenger Car Brake Systems

    JK petition: The vehicles conform to the standard as manufactured.
    Alterations identified in G&K petition: Modification of the 
hydraulic brake system and the parking brake system through the 
installation of components available only from G&K. The petition did 
not describe these modifications, for which G&K claimed 
confidentiality. In a letter dated March 21, 2005, G&K 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. 201 Occupant 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 G&K petition: Replacement of interior 
components with components fabricated by, and available only through, 
G&K. The petition did not describe these components or their manner of 
installation. G&K claimed confidentiality with respect to these 
modifications.
NHTSA's Analysis
    The modifications that JK and G&K 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. 204 Steering 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.
    G&K petition: The vehicles must be modified to meet the standard. 
The petition did not describe these modifications, for which G&K 
claimed confidentiality. In a letter dated March 21, 2005, G&K stated 
that no

[[Page 41512]]

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. 206 Door Locks and Door Retention Components

    JK petition: The vehicle conforms to the standard as originally 
manufactured.
    Alterations identified in G&K petition: Modification of the door 
locks and door retention components to meet the standard. The petition 
did not describe these modifications, for which G&K claimed 
confidentiality. In a letter dated March 21, 2005, G&K 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. 208 Occupant 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 G&K petition: The vehicles must be 
modified to meet this standard. The petition did not describe these 
modifications, for which G&K claimed confidentiality. In a letter dated 
March 21, 2005, G&K 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 G&K 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. 209 Seat 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 G&K petition: Modification of the seat 
belt systems to meet this standard. The petition did not describe the 
modification, for which G&K claimed confidentiality.
NHTSA's Analysis
    The modifications that JK and G&K 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. 214 Side 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 G&K petition: Modification of the 
vehicles through the installation of components available only from 
G&K. The petition did not describe the modifications, for which G&K 
claimed confidentiality.
NHTSA's Analysis
    The modifications that JK and G&K 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. 216 Roof Crush Resistance

    JK petition: The vehicles conform to this standard as originally 
manufactured.
    Alterations identified in G&K petition: The vehicles must be 
modified to meet this standard. The petition did not describe these 
modifications, for which G&K claimed confidentiality. In a letter dated 
March 21, 2005, G&K 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. 225 Child Restraint Anchorage Systems

    JK petition: The petition did not identify any modifications 
required to conform the vehicles to the standard.
    Alterations identified in G&K 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 G&K 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. 301 Fuel 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 G&K petition: Modification of the 
vehicles' fuel system through the installation of components available 
only from G&K. The petition

[[Page 41513]]

did not describe these modifications, for which G&K 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. 302 Flammability of Interior Materials

    JK petition: The vehicles conform to the standard as originally 
manufactured.
    Alterations identified in G&K petition: Interior materials and 
components covered by the standard must be treated with a product 
available only from G&K. G&K claimed confidentiality with respect to 
these modifications.
NHTSA's Analysis
    The modifications that G&K 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 581 Bumper 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 G&K petition: Modification of the bumper 
system through installation of components available only from G&K. The 
petition did not describe the modifications.
NHTSA's Analysis
    The modifications that G&K 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]
BILLING CODE 4910-59-P