Final Decision To Partially Rescind Decision That Nonconforming 1990-1999 Nissan GTS and GTR Passenger Cars Are Eligible for Importation, 10591-10596 [06-1896]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 40 (Wednesday, March 1, 2006)]
[Notices]
[Pages 10591-10596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-1896]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA 2005-22654; Notice 2]


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

-----------------------------------------------------------------------

SUMMARY: This document announces a final decision by NHTSA to partially 
rescind a prior decision by the agency 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. As a result of this decision, 
only Nissan R33 model GTS and GTR passenger cars manufactured between 
January 1996 and June 1998 are eligible for importation. All other 
model and model year vehicles admissible under the prior decision are 
no longer eligible for importation. As a consequence, the agency is 
rescinding vehicle eligibility number VCP-17, which covered vehicles 
admissible under the prior decision, and issuing vehicle eligibility 
number VCP-32 to cover only those model and model year Nissan GTS and 
GTR passenger cars that remain eligible for importation. The rescission 
will only bar the future importation of the model and model year Nissan 
GTS and GTR passenger cars that are no longer eligible for importation, 
and will not affect the status of vehicles that have already been 
lawfully imported under vehicle eligibility number VCP-17.

DATES: The decision is effective on March 1, 2006.

FOR FURTHER INFORMATION CONTACT: Coleman Sachs, Office of Vehicle 
Safety Compliance, National Highway Traffic Safety Administration, 400 
Seventh Street, SW., Washington, DC 20590 (202-366-5291).

SUPPLEMENTARY INFORMATION:

A. Statutory and Regulatory 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 crash 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. Because NHTSA has little or no direct 
knowledge of many vehicles for which import eligibility is sought, the 
agency must rely on the petition and any comments that are submitted in 
making this decision. The agency then publishes its decision in the 
Federal Register. If NHTSA decides that the vehicle is eligible for 
importation, it will assign a vehicle eligibility number. The 
eligibility

[[Page 10592]]

number is entered on the importation declaration to inform Customs that 
the vehicle can be lawfully imported (by a registered importer or by a 
person who has a contract with a registered importer to modify the 
vehicle) even though the vehicle was not originally manufactured to 
comply with all applicable FMVSS or was not so certified by its 
original manufacturer for importation into, and sale in, the United 
States.

B. Import Eligibility Petition and Decision

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

C. Information Undermining Eligibility Decision

    After the notice of decision granting the petition was published, 
the agency obtained additional information regarding 1990-1999 Nissan 
GTS and GTR passenger cars from Nissan North America, Inc., the U.S. 
representative of Nissan Motor Company, LTD (Nissan) of Tokyo, Japan, 
the vehicles' manufacturer. 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 stated 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's and the front passenger's seating 
positions on the R32, the R33, and the R34 model vehicles.
    The agency did not have this information 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 the original petition suggested were representative of 
the entire model year range covered by the petition. 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 
front passenger's seating positions with components manufactured to its 
own specifications. With the benefit of the information provided by 
Nissan, it is now apparent that 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 petitioner did not identify these separate 
models or provide crash performance test data on them.
    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's 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's 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 air 
bags installed as optional equipment. Based on the information 
furnished by Nissan, the agency can only be assured that R33 model 
vehicles, produced by Nissan beginning in January 1996, had both 
driver's and passenger's air bags installed as original equipment.

D. Tentative Decision To Partially Rescind Import Eligibility

    On the basis of the foregoing, NHTSA 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 tentatively decided to rescind that 
decision in part, so that only Nissan R33 model GTS and GTR passenger 
cars manufactured between January 1996 and June 1998 would be eligible 
for importation if the tentative decision was made final. The agency 
published a notice of the tentative decision on November 28, 2005, 70 
FR 71375. The notice solicited public comments on the tentative 
decision.

E. Comments on Tentative Decision

    The agency received 35 comments in response to the notice of 
tentative decision. Nine of these were duplicates. Eliminating the 
duplicates, a total of 26 comments were received. Those comments are 
summarized below.

a. General Issues

    Ten commenters opposed any change in the existing decision that 
1990-1999

[[Page 10593]]

Nissan GTS and GTR ``Skyline'' passenger cars are eligible for 
importation. Two commenters expressed the opinion that Skylines are not 
unsafe vehicles. Three commenters observed that there are so few 
Skyline vehicles in the United States that their impact on motor 
vehicle safety is negligible. Three commenters observed that NHTSA 
should not rescind import eligibility for Nissan Skylines, thereby 
denying enthusiasts the opportunity to own these vehicles, on account 
of a single registered importer's fraudulent practices in certifying 
the compliance of these vehicles to all applicable standards. In 
contrast to these comments, three commenters were of the opinion that 
NHTSA should rescind import eligibility for all Nissan Skyline 
vehicles. Of these, one commenter believed the market for the Nissan 
Skyline was too limited for businesses to spend the capital necessary 
to re-engineer components required to fully comply with the FMVSS.
    Agency Response: Because they were not originally manufactured to 
comply with all applicable FMVSS, Nissan Skyline vehicles could not be 
lawfully imported into the United States unless they were determined 
eligible for importation, based on their capability of being modified 
to conform to those standards. That is the case regardless of how safe 
the commenters may believe the vehicles to be, and regardless of how 
many Skyline vehicles may actually be operated on U.S. roads.
    Although the agency's original import eligibility decision was 
overly broad because it was based on the premise that all vehicles 
within the 1990-1999 model years were built on the same platform and 
were all equipped with air bags, the agency does not believe it is 
necessary to entirely rescind import eligibility for all Skyline 
vehicles. There is sufficient information of record for the agency to 
conclude that certain of those models and model years are capable of 
being modified to conform to all applicable standards within the 
meaning of 49 U.S.C. 30141(a)(1)(B).
    Although the agency has been informed that some Skyline owners have 
been defrauded by unscrupulous enterprises operating outside the laws 
and regulations that the agency administers, that is not the reason for 
the partial rescission action. The partial rescission is instead based 
on the receipt of new information from the vehicles' original 
manufacturer that caused the agency to question the breadth of its 
original eligibility decision.

b. Request To Delay Agency Decision

    One commenter, who described himself as a member of the armed 
forces, stated that he specifically requested a tour of duty in Japan 
so that he could return to the United States with a Nissan Skyline. 
This commenter requested the agency to delay the partial rescission for 
12 to 24 months so he and other military personnel may import vehicles 
before the rescission takes effect.
    Agency Response: An agency decision to partially rescind import 
eligibility for the Nissan Skyline would limit the model and model year 
range of those vehicles that can be lawfully imported, but would not 
render all Nissan Skyline vehicles ineligible for importation. This 
should assure that returning service members and others would continue 
to have a sufficient opportunity to import one of these vehicles. The 
agency notes that it lacks the authority to create special exemptions 
from the importation restrictions for any reason, including military 
service.

c. Challenges To Information Supporting Partial Rescission

1. The Three Models Would Perform the Same in Crash Tests
    Four commenters disagreed with the manufacturer's statement that 
R32, R33, and R34 model vehicles differ in terms of their structural 
design and restraint performance. The commenters acknowledge that there 
are structural differences among the platforms, which they view as 
minor, but predict that crash tests performed on each of those 
platforms would yield identical results. Several commenters recommended 
that the agency obtain the manufacturer's vehicle design documents to 
confirm the differences claimed by the manufacturer.
    Agency Response: The original manufacturer, Nissan, represented 
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 observed that it was ``highly likely 
that each model type would perform differently in the crash tests 
required by the FMVSS.'' The commenters have not provided any technical 
basis for disputing Nissan's statements. Based on its review of the 
petition and the petition's supporting information, including reports 
of crash tests conducted on two R33 model Nissan Skyline vehicles, in 
1999 the agency was persuaded that the petitioner had demonstrated that 
the R33 model Nissan Skyline was capable of being altered to comply 
with all applicable FMVSS. Aside from generally observing that the 
three Skyline models would yield similar crash test results, none of 
the commenters provided any sound evidence, such as crash test data, to 
show that the R32 and R34 models are also capable of being brought into 
compliance with all applicable FMVSS. There is nothing to refute the 
original manufacturer's claim that the three models would be highly 
likely to perform differently in dynamic crash tests. In light of the 
manufacturer's statement that the three Skyline models would perform 
differently in dynamic crash tests and the absence of crash test data 
to support the commenters' claim that the three models would perform 
the same, we decline to accept that claim.
2. Owner's and Parts Manuals Show Availability of Air Bags as Optional 
Equipment in Early Models
    One commenter stated that he obtained in Japan a 1992 Nissan 
Skyline GTR owner's manual showing that an air bag was offered for the 
vehicle. Additionally, this commenter stated that he purchased a parts 
manual for a 1992 R32 model vehicle showing the part numbers for an air 
bag. The commenter stated he was enclosing pages from both manuals with 
his comment to the Docket, but did not do so. Based on the information 
he reportedly found in the two manuals, the commenter requested 
clarification of Nissan's statement that no driver's air bag was 
offered for the R32 GTR model until February 1994, and that it was then 
offered only as optional equipment.
    Agency's Response: Based on the information provided by Nissan, 
that manufacturer offered an air bag as optional equipment at the 
driver's designated seating position on the R32 sedan and coupe 
beginning in August 1991. We are aware that vehicle owner's manuals 
often contain information covering optional equipment offered in a 
vehicle model. The same holds true for parts manuals. While an air bag 
was offered as early as August 1991 in the R32 sedan and coupe, Nissan 
states that it did not offer the air bag in the R32 GTR until February 
1994. We do not regard the commenter's information as refuting the 
information provided by Nissan.

[[Page 10594]]

3. Optional R32 Air Bags Are Nearly Identical to R33 Air Bags
    One commenter, an attorney representing a vehicle owner, claimed 
that an air bag was available as a factory option on 1990-1993 R32 
model Nissan Skyline vehicles. This commenter asserted that this 
optional restraint system is nearly identical to that found in 1993-
1995 R33 model Nissan Skyline vehicles and employs the same sensors and 
electronic control module. Although he conceded that there are 
differences between the chassis of the R32 and later R33 models, the 
commenter contended that the air bag systems installed in those models 
are substantially similar, in terms of both their components and their 
manner of operation, and observed that the R33 model was crash tested 
by the RI that petitioned NHTSA to determine the vehicle eligible for 
importation. The commenter also noted that 1990 to 1994 model vehicles 
are not required to have an air bag to comply with the automatic crash 
protection requirements of FMVSS No. 208, and may do so by means of an 
automatic restraint such as a motorized seatbelt. As a consequence, the 
commenter encouraged the agency to allow the original eligibility 
determination to stand, but to permit an alternate means of achieving 
compliance with FMVSS No. 208 (e.g., by adding automatic seatbelts).
    Agency Response: Contrary to the commenter's contention, 
information supplied to the agency by Nissan shows that no 1990 R32 
model Skyline vehicles were manufactured with air bags at the driver's 
designated seating position. It was not until August 1991 that Nissan 
began offering, as optional equipment, air bags at the driver's 
designated seating position in R32 model sedans and coupes. According 
to Nissan, no R32 model Skyline was equipped with an air bag at the 
passenger's designated seating position. With regard to the commenter's 
observation that nearly identical restraint systems were available for 
R32 and R33 model vehicles, the agency again notes Nissan's claim that 
the R32, R33, and R34 models differ in terms of their ``structural 
design and restraint performance,'' that each of the models was ``newly 
designed and different from the type preceding it,'' and that it was 
``highly likely that each model type would perform differently in the 
crash tests required by the FMVSS.''
    Addressing the commenter's suggestion that motorized seatbelts be 
allowed as an alternate means of achieving compliance with FMVSS No. 
208, the agency notes that the registered importer that petitioned 
NHTSA to determine the Nissan Skyline eligible for importation 
conducted crash tests on the vehicle after replacing its air bags with 
ones manufactured to the petitioner's specifications. The petitioner 
did not install motorized seatbelts in the vehicle to achieve 
compliance with the standard. Moreover, Nissan informed the agency that 
automatic seatbelts were not installed as original equipment in the 
1990-1999 Skyline models, and no dynamic crash test data is available 
to demonstrate that such a vehicle equipped with automatic seatbelts 
would comply with FMVSS No. 208. The mere statement that equipment such 
as automatic seatbelts could be added to a vehicle is not sufficient to 
prove that the vehicle is capable of being altered to comply with FMVSS 
No. 208, as would be required to establish that the vehicle is eligible 
for importation under 49 U.S.C. 30141(a)(1)(B). Such proof could only 
be obtained by conducting a crash test that replicates how the vehicle 
structures and restraint systems perform in a crash.
4. Agency's Reliance on Manufacturer's Comments Is Inconsistent With 
Past Import Eligibility Decision Practices
    Another commenter, a registered importer, observed that because 
Nissan had every opportunity to comment on the original import 
eligibility petition covering 1990-1999 Nissan GTS and GTR passenger 
cars, but elected not to do so, the manufacturer in effect conceded 
that no adverse safety impact would result from the granting of this 
petition. Noting that NHTSA received information from the manufacturer 
after the petition was granted, the commenter recommended that the 
agency officially announce, in the Federal Register notices that it 
publishes to solicit comments on future petitions, that it will ask 
manufacturers to assess the sufficiency of the proposed modifications 
identified by the petitioner. In particular, the commenter faulted the 
agency for accepting Nissan's statements that the R32, R33, and R34 
model vehicles are sufficiently distinct that they are likely to yield 
different crash test results. The commenter noted that NHTSA has 
disregarded manufacturer's comments in ruling on past petitions. The 
commenter further noted that NHTSA personnel have previously stated 
that minor differences in overall wheelbase would not have an overall 
impact on a vehicle's crashworthiness unless weight differences of more 
than 500 pounds were involved.
    Agency response: The agency does not believe that any conclusion or 
inference can be drawn from the fact that Nissan did not comment on the 
original eligibility petition for Nissan Skyline vehicles. Regarding 
the manner in which NHTSA obtained information from Nissan in this 
instance, the agency notes that it asked the manufacturer to provide 
vehicle production data on Skyline vehicles as part of an investigation 
unrelated to the original petition. Based on the information furnished 
by the manufacturer (such as the fact that air bags were not installed 
as original equipment on 1990 R32 models), the agency re-evaluated the 
eligibility decision. Contrary to the commenter's observation, the 
agency was not constrained from re-evaluating this decision on account 
of past instances in which it has granted import eligibility to a 
particular vehicle despite objections from the vehicle's original 
manufacturer.
    The information furnished by Nissan, which NHTSA did not have when 
it granted the original petition, compelled the agency to conclude that 
the petitioner did not adequately demonstrate that R32 and R34 model 
Skyline vehicles are capable of being modified to comply with all 
applicable FMVSS. In these circumstances, it was not appropriate for 
the agency to let its earlier import eligibility decision stand. 
Accordingly, NHTSA undertook to modify that decision prospectively by 
limiting import eligibility to R33 model vehicles in which both 
required air bags are installed as standard equipment. However, RIs are 
free to petition the agency to decide whether any other model or model 
year Skyline vehicle is eligible for importation.
    Unlike past instances in which a single eligibility decision has 
covered vehicles with minor differences in overall wheelbase, in this 
instance, the Nissan Skyline was produced in three distinct models over 
the 1990 through 1999 model years. In view of Nissan's statement that 
the three models differ in terms of their ``structural design and 
restraint performance,'' and would be ``highly likely to perform 
differently in the crash tests required by the FMVSS,'' NHTSA cannot 
justify maintaining import eligibility for the three models based on 
data submitted for one model alone.
5. Import Eligibility Should Be Retained for 1995 R33 Model Skyline 
Vehicles
    Six commenters asked the agency to retain import eligibility for 
1995 R33 model Nissan Skyline vehicles. The commenters noted that the 
body style of the 1995 R33 model is exactly the same

[[Page 10595]]

as the R33 models produced from 1996 to 1998. The commenters further 
observed that some of the 1995 R33 model vehicles were equipped with an 
optional air bag at the passenger's designated seating position. The 
commenters noted that even though Nissan is unable to advise the agency 
whether any particular vehicle was manufactured with an optional air 
bag, agency personnel might verify the air bag's presence by performing 
a vehicle inspection.
    The commenters further contended that 1995 models that were not 
originally equipped with an air bag at the passenger's designated 
seating position are capable of being retrofitted with readily 
available components. One commenter stated that a dual supplemental 
restraint system (SRS) could be installed in those vehicles. As 
described by the commenter, this system would include a complete dash, 
a passenger's air bag module, a dual SRS wire harness, and a dual SRS 
electronic control unit.
    Another commenter contended that it is possible to retrofit 1995 
Skyline vehicles with dual air bags, because these vehicles were 
originally designed to accept the optional passenger air bag on the 
assembly line. The commenter claimed that the steering column, the 
wiring harness, and air bag system mounting brackets are identical on 
1995 R33 model vehicles, regardless of whether they were originally 
equipped with or without the optional passenger air bag. The commenter 
further contended that the components needed to add the air bag at the 
passenger's designated seating position (e.g., rear SRS control unit 
mount and dashboard pad with blow out panel) could be readily purchased 
from the manufacturer and retrofitted to the vehicle.
    Agency response: The original petition stated that to achieve 
compliance with FMVSS No. 208, the driver's air bags on 1990-1993 
models, and the driver's and passenger's air bags on 1994-1999 models, 
would need to be replaced with components manufactured to the 
petitioner's specifications. The petition did not address the fact that 
many Skyline vehicles within the covered range of model years never had 
air bags installed as original equipment and that those components 
could therefore not be ``replaced'' in the manner described. Because it 
has no way to reliably determine whether any particular 1995 model 
Skyline vehicle was originally equipped with a passenger air bag, the 
agency is unwilling to retain import eligibility for that model year.
    With regard to the suggestion that 1995 vehicles be inspected to 
determine whether air bags are installed, our regulations at 49 CFR 
594.7(e) require the payment of $827 when agency personnel inspect a 
vehicle. The agency does not have the resources that would be needed to 
inspect each 1995 vehicle that may be imported.
    Only vehicles originally manufactured with all required air bags 
are within the scope of the original eligibility decision. Without the 
benefit of data, views, and arguments equivalent to what is needed to 
support an eligibility petition, the agency is unable to determine 
whether a 1995 R33 model Skyline vehicle that was not originally 
equipped with one or more required air bags may be properly retrofitted 
with an air bag system. Based on the information furnished by Nissan, 
our only assurance is that R33 model Skyline vehicles manufactured 
beginning in January 1996, which had dual air bags installed as 
standard equipment, can be modified in the manner described in the 
original eligibility petition.
6. Requested Relief for Vehicles Already Imported
    Ten commenters stated that they had purchased Nissan Skyline 
vehicles in good faith and lawfully imported those vehicles for 
personal use in reliance on the agency's existing import eligibility 
determination. These commenters requested the agency to grant a one-
time waiver from the requirements of standards the vehicles have not 
been proven to meet. Given the limited number of vehicles that fall 
into this category, the commenters contended that the granting of such 
a waiver would have a negligible impact on motor vehicle safety. In 
exchange for any such waiver, several commenters offered to accept 
certain conditions, such as those limiting on-road use, restricting the 
resale of the vehicle, and releasing the agency from liability for 
injuries that could result from operating a vehicle that does not 
comply with all applicable standards.
    One commenter asked the agency to consider exempting from the air 
bag requirements vehicles already imported and in the custody of a 
registered importer. This commenter observed that the agency has 
previously granted financial hardship exemptions from the requirements 
of FMVSS No. 208 to five manufacturers, including Saleen, Bugatti, 
Shelby America, Laforza, and Spyker. The commenter also observed that 
the agency also granted permission to a vehicle owner to deactivate an 
air bag based on a medical condition, even though the vehicle's 
registered importer did not properly install a required air bag.
    Agency response: An agency decision to partially rescind import 
eligibility for Nissan Skyline vehicles would only be effective 
prospectively, and would not affect the legality of the importation of 
those vehicles under the prior eligibility decision. As previously 
noted, NHTSA granted import eligibility to 1990-1999 Nissan GTS and GTR 
``Skyline'' passenger cars on the basis of a representation in the 
original petition that the vehicle's airbags would be ``replaced'' with 
components manufactured to the petitioner's specifications. Because no 
comments were submitted in response to the notice of petition, this 
representation was not refuted. It was only later that the agency 
learned, through an investigation, that air bags were only installed as 
standard equipment on a limited range of vehicles produced within the 
models years covered by the petition. NHTSA has not released the DOT 
Conformance bonds on a number of Skyline vehicles that were not 
originally manufactured with required air bags, for want of evidence 
that those vehicles have been altered to comply with FMVSS No. 208 in 
the manner described in the petition. Comments relating to disposition 
of these and other vehicles already imported under the prior decision 
are outside the scope of this decision. Nevertheless, the agency is 
willing to consider, on a case-by-case basis, the concerns of those 
owning Skyline vehicles that were lawfully imported under the original 
eligibility decision but have yet to be bond released by NHTSA.
    We have considered the commenters' suggestions in light of the 
agency's authority under the laws and regulations that it administers. 
One commenter suggested that the agency grant owners of the affected 
vehicles exemptions from one or more applicable FMVSS, such as those 
granted to manufacturers under 49 U.S.C. 30113 and 49 CFR Part 555. As 
specified in those provisions, these exemptions can only be granted to 
a manufacturer, and only in circumstances where compliance with a 
standard would cause substantial economic hardship to a manufacturer 
that has tried in good faith to comply with the standard. The agency 
lacks the authority to grant such an exemption to any other party. 
Although a registered importer may file with the agency a petition for 
a temporary exemption under Part 555, as explained in the agency's 
interpretations, the agency would regard such a petition as being filed 
on behalf

[[Page 10596]]

of the foreign manufacturer, and would consider the circumstances of 
the manufacturer, and not the importer, in deciding whether to grant 
the petition. Moreover, since an exemption under Part 555 would only 
apply to vehicles originally manufactured after the date the exemption 
is granted, used vehicles could not benefit from such an exemption.
    One commenter also suggested that the agency grant owners of 
vehicles that cannot be modified to conform to the air bag requirements 
of FMVSS No. 208 an exemption similar to the one described in 49 CFR 
595.5. This provision enables motor vehicle dealers or repair 
businesses to install retrofit air bag on-off switches without 
violating the prohibition in 49 U.S.C. 30122 against making inoperative 
safety equipment installed in a vehicle in compliance with an 
applicable standard. This regulation applies to a limited and narrowly 
tailored set of circumstances. The regulation seeks to preserve the 
benefits of air bags, while providing a means for reducing the risk of 
serious or fatal injury that air bags pose to identifiable groups of 
people, such as people who cannot avoid sitting extremely close to air 
bags by reason of their short stature, people with certain medical 
conditions, and young children. To obtain permission for the 
installation of an on-off switch, the vehicle owner must certify that 
the owner or another user of the vehicle is a member of one of the at-
risk groups. This regulation, which pertains to the prohibition on 
making safety equipment inoperative in 49 U.S.C. 30122, has no bearing 
on import eligibility decisions under 49 U.S.C. 30141(a)(1)(B).
    Several commenters offered to limit their vehicles' on-road use, to 
restrict the resale of their vehicles, or to release the agency from 
liability resulting from the vehicles' noncompliance in exchange for a 
waiver from compliance with one or more applicable standards. 
Addressing the offer to release the agency from liability, the agency 
notes that it is not subject to suit for exercising governmental 
functions of this kind. The remaining conditions are similar to ones 
imposed on the owners of vehicles imported for purposes of show or 
display under 49 CFR 591.5(j)(1). A vehicle cannot be imported for 
purposes of show or display unless it is found by the agency to have 
such historical or technological significance that it is worthy of 
being imported for those purposes. As a general rule, a vehicle is 
ineligible for importation for purposes of show or display if more than 
500 of the vehicles were produced, or if the vehicle has been found 
eligible for importation under 49 CFR Part 593, based on its capability 
of being modified to conform to all applicable standards. For these 
reasons, the agency has previously denied an application for the 
importation of a 1995 Nissan Skyline GTS-T under the show or display 
provisions. To be consistent with its past administration of these 
provisions, the agency remains unwilling to extend show or display 
status to Nissan Skyline vehicles. Moreover, the agency lacks the 
authority to impose mileage or resale restrictions on vehicles imported 
for any other purpose.

Final Decision

    Accordingly, on the basis of the foregoing, NHTSA hereby rescinds 
its decision, granted on November 15, 1999, that 1990-1999 Nissan GTS 
and GTR Passenger cars are eligible for importation into the United 
States. NHTSA hereby decides that Nissan R33 model GTS and GTR 
passenger cars manufactured between January 1996 and June 1998 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.

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 was 
assigned to 1990-1999 Nissan GTS and GTR passenger cars. NHTSA is 
rescinding that eligibility number and assigning eligibility number 
VCP-32 to Nissan R33 model GTS and GTR passenger cars manufactured 
between January 1996 and June 1998 that remain eligible for 
importation.

    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.

Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 06-1896 Filed 2-28-06; 8:45 am]
BILLING CODE 4910-59-P