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Denial of Petition for Import Eligibility


American Government

Denial of Petition for Import Eligibility

Nancy Lummen Lewis
National Highway Traffic Safety Administration
December 9, 2014


[Federal Register Volume 79, Number 236 (Tuesday, December 9, 2014)]
[Notices]
[Pages 73140-73141]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28725]



[[Page 73140]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0141, Notice 2]


Denial of Petition for Import Eligibility

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Denial of Petition.

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SUMMARY: This document sets forth the reasons for the denial of a 
petition submitted to the National Highway Traffic Safety 
Administration (NHTSA) under 49 U.S.C. 30141(a)(1)(B). The petition, 
which was submitted by US SPECS of Havre de Grace, Maryland, a 
registered importer (RI) of motor vehicles, requested NHTSA to decide 
that what US SPECS described as a ``2012 Lita GLE-6 low-speed vehicle 
(LSV)'' that was not originally manufactured to comply with all 
applicable Federal Motor Vehicle Safety Standards (FMVSS) is eligible 
for importation into the United States because it has safety features 
that comply with, or are capable of being altered to comply with, all 
such standards. NHTSA is denying the petition because the 2012 Lita 
GLE-6 as originally manufactured would be classified as something other 
than an LSV, and could not be converted to an LSV through the RI 
process.

SUPPLEMENTARY INFORMATION: NHTSA published a notice of receipt of the 
petition, with a 30-day public comment period, on May 21, 2013, in the 
Federal Register (78 FR 29808). The notice contained the following 
cautionary statement: ``It should be noted that the publication of this 
notice is not an acknowledgment that the vehicle that is the subject of 
the petition, the 2012 Lita GLE-6, is a low speed vehicle. In addition, 
in NHTSA's view, a vehicle that is not a low speed vehicle may not be 
converted to one by installing a governor (electronic or mechanical) or 
by removing weight such as by removing a seat, which may be 
reinstalled.'' See 78 FR 29809. The agency solicited comments on these 
specific issues. Ibid. No comments were submitted in response to the 
notice. Despite the absence of comments, NHTSA has reviewed the 
petition, and concluded that it must be denied. The reasons for this 
conclusion are set forth below.
    In evaluating the petition, NHTSA has concluded that the activities 
US SPECS is proposing to undertake with respect to the vehicle in 
question are not ones that fall within the limited scope of activities 
an RI is authorized to perform. As detailed in the agency's regulations 
at 49 CFR part 592 Registered Importers of Vehicles not Originally 
Manufactured to Conform to the Federal Motor Vehicle Safety Standards, 
an RI is responsible for taking possession of a nonconforming motor 
vehicle that has been offered for importation, performing all 
modifications necessary to conform the vehicle to all Federal motor 
vehicle safety and bumper standards that apply to the vehicle, and then 
certifying the vehicle as conforming to those standards. See 49 CFR 
592.6(c).
    Under the Safety Act, RIs are not in the same position as original 
manufacturers. In general, manufacturers that produce motor vehicles 
and motor vehicle equipment for the United States market and that 
import vehicles and equipment for the United States market must produce 
and import vehicles and equipment that comply with, and are certified 
to, Federal Motor Vehicle Safety Standards (FMVSSs). See 49 U.S.C. 
30112(a), 30115. RIs are on a different footing. An exception to the 
general rule, which applies to motor vehicles (but not to motor vehicle 
equipment), is that vehicles that were not originally manufactured to 
comply with FMVSSs may be imported under the registered importer 
program if a number of conditions are met.
    Under the statute, RIs are recognized as occupying a unique 
position as modifiers of previously manufactured vehicles. Section 
30141 permits importation of vehicles that do not comply with FMVSSs 
only if NHTSA determines that the vehicle can be modified to meet all 
applicable FMVSSs. 49 U.S.C. 30141. More specifically, Section 
30141(a)(1)(A), which governs the import eligibility of vehicles with a 
substantially similar U.S. certified counterpart, authorizes NHTSA to 
allow importation of such a vehicle if the vehicle is ``capable of 
being readily altered to comply with applicable motor vehicle safety 
standards prescribed under this chapter.'' (Emphasis added), 49 U.S.C. 
30141(a)(1)(A)(iv). When a non-compliant vehicle does not have a 
substantially similar U.S. counterpart, NHTSA may only determine that 
the vehicle is eligible for importation if ``the safety features comply 
with or are capable of being altered to comply with . . .'' applicable 
FMVSS. (Emphasis added), 49 U.S.C. 30141(a)(1)(B). The agency is 
empowered to make such determinations on its own initiative or ``on 
petition of a manufacturer or importer registered under subsection (c) 
of this section.'' 49 U.S.C. 30141(a). An importer registered under 
subsection (c) of Sec.  30141 is an RI. Therefore, on its face, Sec.  
30141 establishes that Congress distinguished RIs from original 
``manufacturer[s]''.
    RI's have a special status and responsibilities and duties beyond 
those generally imposed on ``manufacturer[s]'' under the Safety Act. In 
contrast to companies that produce and import vehicles certified to 
comply with FMVSSs, RI's must post a bond when importing vehicles. 49 
U.S.C. 30141(d). Congress also established ownership restrictions for 
RI's and directed NHTSA to establish regulations unique to these 
entities. 49 U.S.C. 30141(c). Unlike original manufacturers that self-
certify vehicles, RIs must also demonstrate, to NHTSA's satisfaction, 
that particular vehicles have been brought into compliance with all 
applicable FMVSS. Under 49 U.S.C. 30146(a) an RI may ``release custody 
of a motor vehicle imported by the registered importer . . . only after 
. . . the registered importer certifies to the Secretary of 
Transportation, in the way the Secretary prescribes, that the motor 
vehicle complies with each standard prescribed in the year the vehicle 
was manufactured and that applies in that year to that vehicle.'' Where 
an RI has certified a vehicle that is substantially similar to a 
vehicle certified for the U.S. market by its original manufacturer, the 
RI must recall the vehicles it has certified if the original 
manufacturer recalls its U.S.-certified counterpart. 49 U.S.C. 
30147(a)(1)(A).
    NHTSA's regulations properly recognize the congressional 
determination that an RI's role is to modify non-compliant vehicles. 
Petitions for import eligibility must identify the original 
manufacturer of the vehicle and the vehicle's model name and model 
year. 49 CFR 593.6(a)(1) and (b)(1). In the case of petitions seeking 
eligibility on a ``substantially similar'' basis, the petition must 
identify the necessary modifications that must be completed to bring 
the non-compliant vehicle into compliance with the FMVSS applicable to 
the vehicle's U.S.-certified counterpart. Sec.  593.6(a)(5). For other 
vehicles, the petition must show that the vehicle is capable of being 
modified to meet the standards that would have applied had it been 
originally manufactured for importation into and sale in the U.S. Sec.  
593.6(b)(2).
    Any examination of the petition filed by US SPECS is premised on 
the notion that the 2012 Lita GLE-6 is a ``motor vehicle.'' For the 
purposes of the Safety Act, a ``motor vehicle'' is ``a vehicle driven 
or drawn by mechanical power and manufactured primarily for use on

[[Page 73141]]

public streets, roads, and highways.'' See 49 U.S.C. 30102(a)(6). In 
filing the petition, US SPECS acknowledges 2012 Lita GLE-6 is 
manufactured primarily for use on public streets, roads and highways. 
If this were not the case, and the 2012 Lita GLE-6 was not manufactured 
primarily for highway use, then it is not a ``motor vehicle'' subject 
to the FMVSS, and there would be no reason to consider performing 
conformance modifications to ensure that the 2012 Lita GLE-complies 
with those standards.
    Because there is no need to examine whether the 2012 Lita GLE-6 is 
a motor vehicle, the next question that arises is what class of vehicle 
is at issue in this petition. US SPECS contends that the 2012 Lita GLE-
6 should be classified as a Low Speed Vehicle (LSV). NHTSA's 
regulations at 49 CFR 571.3 define, among other things, the types of 
vehicles that are subject to the FMVSS. Those regulations state: ``Low-
speed vehicle (LSV) means a motor vehicle, (1) That is 4-wheeled, (2) 
Whose speed attainable in 1.6 km (1 mile) is more than 32 kilometers 
per hour (20 miles per hour) and not more than 40 kilometers per hour 
(25 miles per hour) on a paved level surface, and (3) Whose GVWR [gross 
vehicle weight rating] is less than 1,361 kilograms (3,000 pounds).'' 
Requirements for LSVs are specified in FMVSS No. 500 Low-Speed 
Vehicles, at 49 CFR 571.500. The purpose of the standard is to ensure 
that low-speed vehicles operated on the public streets, roads, and 
highways are equipped with the minimum motor vehicle equipment 
appropriate for motor vehicle safety. The standard requires an LSV to 
be equipped with headlamps, front and rear turn signal lamps, 
taillamps, stop lamps, reflex reflectors, mirrors, a parking brake, a 
windshield that conforms to the FMVSS on glazing materials (49 CFR 
571.205), a vehicle identification number or VIN that conforms to the 
requirements of 49 CFR part 565 Vehicle Identification Number 
Requirements, and a Type 1 or Type 2 seat belt assembly at each 
designated seating position that conforms to FMVSS No. 209 Seat Belt 
Assemblies (49 CFR 571.209).
    Consistent with these requirements, US SPEC's petition stated that 
the company would need to install headlights, turn signals, tail 
lights, a stop light, reflex reflectors, mirrors, a parking brake, and 
a compliant windshield, seat belts and VIN plate on the vehicle if it 
was not already so equipped. In addition, the petition stated that 
every vehicle must be weighed and ``[a]ny vehicle not meeting the 
required GVWR for low speed vehicle (sic) must have some of the seating 
removed to achieve the correct calculated GVWR.'' This statement was 
made in reference to the requirements for calculating a vehicle's GVWR 
that are found in NHTSA Certification regulations at 49 CFR part 567. 
Section 567.4(g)(3) of those regulations specifies that a vehicle's 
stated GVWR ``shall not be less than the sum of the unloaded vehicle 
weight, rated cargo load, and 150 pounds times the number of the 
vehicle's designated seating positions.'' Finally, the petition states: 
``Every vehicle must be checked to insure that it does not exceed the 
maximum (25 mph) and minimum (20 mph) speed requirement. We must 
reprogram any vehicle that is not within the required speed limits.''
    Given the modifications that US SPECS described as potentially 
needing to be performed on the 2012 Lita GLE-6, a question can be 
raised as to whether the vehicle was originally manufactured as an LSV. 
If the 2012 Lita GLE-6, as originally manufactured, had the 
characteristics of LSV but also has a GVWR of 3,000 pounds or more, 
then it would need to be classified as a motor vehicle of some type 
other than a low speed vehicle, such as a passenger car, multipurpose 
passenger vehicle, or truck. If the vehicle met one of those 
classifications, it could not be modified and certified as a low speed 
vehicle by a registered importer, as a registered importer is not 
authorized to change a vehicle's type classification to circumvent the 
need for bringing the vehicle into compliance with standards that would 
have applied to the vehicle had it been originally manufactured for 
sale in the United States.
    By changing the vehicle's minimum or maximum speed capability, by 
removing designated seating positions to justify a reduction in its 
GVWR, and by adding equipment items required by FMVSS No. 500 that were 
not installed on the vehicle as originally manufactured, US SPECS would 
not be conforming something originally manufactured as an LSV to 
applicable FMVSS, as RI's are authorized to do, but would instead be 
converting a passenger car, multi-purpose vehicle, truck or bus into an 
LSV.
    In view of these considerations, NHTSA has decided to deny the 
petition under 49 CFR 593.7(e). That section provides that a notice of 
denial must state that the Administrator will not consider a new 
petition covering the model that is the subject of the denial until at 
least 3 months from the date of the notice of denial. Because the 2012 
Lita GLE-6 would not be classified as an LSV as originally 
manufactured, NHTSA will not consider any further import eligibility 
petitions covering that vehicle as an LSV.

    Authority: 49 U.S.C. 30141(a)(1)(B) and (b)(1); 49 CFR 593.7; 
delegations of authority at 49 CFR 1.95 and 501.8.

Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2014-28725 Filed 12-8-14; 8:45 am]
BILLING CODE 4910-59-P

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