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]]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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