[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Notices]
[Pages 27593-27594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12664]



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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. 94-107; Notice 2]


Excalibur Automobile Corp.; Grant of Application for Decision of 
Inconsequential Noncompliance

    Excalibur Automobile Corporation (Excalibur) of Milwaukee, 
Wisconsin, determined that some of its vehicles failed to comply with 
the automatic restraint system requirements of 49 CFR 571.208, Federal 
Motor Vehicle Safety Standard (FMVSS) No. 208, ``Occupant Crash 
Protection,'' and filed an appropriate report pursuant to 49 CFR part 
573, ``Defect and Noncompliance Reports.'' Excalibur has also applied 
to be exempted from the notification and remedy requirements of 49 
U.S.C. Chapter 301--``Motor Vehicle Safety'' on the basis that the 
noncompliance is inconsequential to motor vehicle safety.
    Notice of receipt of the application was published on January 5, 
1995 (60 FR 1823). This notice grants the application.
    Paragraph S4.1.4 of FMVSS No. 208 requires that vehicles 
manufactured on or after September 1, 1989, be equipped with a 
restraint system at each front outboard designated seating position 
that meets the standard's frontal crash protection requirements by 
means that require no action by vehicle occupants. This type of system 
is referred to as an automatic restraint system.
    Excalibur manufactured 59 model year 1993, 1994, and 1995 JAC 427 
Cobras without automatic restraint systems. These vehicles all contain 
Type 2, three-point harness active restraint systems. However, as 
Excalibur noted in its part 573 Report filed concurrently with the 
application under consideration, ``36 JAC 427 Cobras are in dealers' 
possession and 15 have been acquired by ultimate purchasers. The 
remaining automobiles remain in the possession of Excalibur.'' NHTSA 
granted Excalibur's application for temporary exemption on March 6, 
1995 (60 FR 12281), an agency action that covers the 36 unsold cars in 
dealer stock and in Excalibur's possession. Therefore, only the 15 cars 
that have been sold remain subject to the application under 
consideration.
    Excalibur supported its application for inconsequential 
noncompliance with the following. The 15 JAC 427 Cobras all contain 
Type 2, three-point harness active restraint systems. Bringing these 
vehicles into compliance with paragraph S4.1.4 of FMVSS 208 would be 
very difficult from an engineering perspective, and whatever feasible 
solutions may be available, would most likely result in significant 
expense for Excalibur, a small financially-strapped company.
    As set forth below, Excalibur argued that the overall safety risk 
from noncompliance with paragraph S4.1.4 of FMVSS 208 is 
inconsequential because of (1) the vehicle's specialized and limited 
use and small number and (2) Excalibur's belief that Cobra owners have 
a relatively high level of safety belt use and (3) Excalibur's proposal 
to boost further Cobra safety belt use by placing a warning label in 
the vehicle.

1. The Overall Safety Risk From Noncompliance of Excalibur's (15) JAC 
427 Cobras With FMVSS 208 Is Inconsequential Given Their Specialized 
And Limited Use And Small Number

    The JAC 427 Cobra is not an ordinary passenger automobile 
designed for daily use. It is a classically-styled automobile viewed 
as a collector's item by automobile purchasers. * * * The JAC 427 
Cobra is a convertible which seats two persons, and has a small 
trunk. As a result, it is not designed to be used as a family's 
primary passenger vehicle. Instead, the JAC 427 Cobra is typically 
driven only short distances from an owner's home. Owners of these 
(sic) type of automobiles generally drive these automobiles no more 
than 4000 miles per year.
    Excalibur has never planned to produce many JAC 427 Cobras due 
to the limited capacity of its manufacturing facilities and the 
nature of its manufacturing process. For example, the highest 
monthly total of JAC 427 Cobra automobiles ever produced was 17. 
Only 59 of these automobiles were produced for sale in the U.S. 
between January 1993 and September 1994, a 21-month period. In 1995, 
Excalibur's total planned production is only 100-180 JAC 427 Cobras 
for sale worldwide, or no more than 15 per month. Of the 100-180, 
only 60% of the JAC 427 Cobras, or 60-108, are proposed for sale in 
the U.S.
    The collector's nature of the JAC 427 Cobra, the low number of 
miles that these types of vehicles are driven on any consistent 
basis, and the small number of actual JAC 427 Cobras that do not 
comply with FMVSS 208 illustrate the overall reduced safety risk of 
these vehicles, especially when compared to the overall risk posed 
by the average use of the standard family passenger vehicle. Thus, 
the total effect of the existence of only (15) JAC 427 noncomplying 
automobiles--which are meant for weekend pleasure driving--is 
inconsequential in relation to the overall level of motor vehicle 
safety in the U.S.

2. The Safety Risk From Noncompliance Of Excalibur's (15) JAC 427 
Cobras With FMVSS 208 Is Inconsequential Due To Probable Existing Cobra 
Safety Belt Use And To Excalibur's Proposal To Boost Cobra Safety Belt 
Use

    The use of safety belts has been shown to significantly reduce 
injuries and fatalities in automobile crashes. See generally NHTSA, 
Evaluation of the Effectiveness of Occupant Protection--FMVSS 208 
Interim Report, June 1992 (hereinafter referred to as ``Interim 
Report''). Use of safety belts has increased dramatically since 1983 
due to the enactment of state mandatory safety belt laws and the 
installation of automatic safety belt systems. By May of 1992, 42 
states plus the District of Columbia and Puerto Rico had enacted 
laws requiring the use of safety belts. Interim Report at v. Safety 
belt use overall increased nationwide to nearly 59% in late 1991, 
ranging from 24% in Mississippi to 83% in Hawaii. NHTSA, 
Effectiveness of Occupant Protection Systems and Their Use--Report 
to Congress, January 1993. Manual safety belt use nationwide reached 
56% in 1991, and may be even higher today due to increased safety 
awareness. See Interim Report at viii.
    An informal survey of Excalibur automobile owners, including 
those of the JAC 427 Cobra, revealed that these owners on average 
are 45 year-old males with greater incomes and higher levels of 
education than the general population. Unlike youthful segments of 
the population who are more prone to reckless driving, Excalibur 
automobile owners are predominantly established, responsible people 
who value their personal safety and the quality and uniqueness of 
their investment in an Excalibur automobile. As a result, Excalibur 
opines that the owners of the JAC 427 Cobras are more likely to be 
wearing a safety belt while driving than other segments of the 
population, such as young single males.
    To ensure even higher safety belt use in its JAC 427 Cobras, and 
thereby increase the safety of the driver and passenger, Excalibur 
proposes reminding in the strongest terms possible both the driver 
and passenger of the consequences of not using their safety belts. 
Excalibur would accomplish this by posting a warning label plainly 
and clearly visible to both the driver and passenger which states as 
follows: [[Page 27594]] 

WARNING: YOU MUST USE THE SEATBELT PROVIDED IN THIS VEHICLE. IT IS THE 
LAW. FAILURE TO USE THE SEATBELT COULD RESULT IN SERIOUS INJURY OR 
DEATH SINCE THIS CAR DOES NOT HAVE AN AIRBAG OR AUTOMATIC RESTRAINT 
SYSTEM.

    Such a label should boost safety belt use by the drivers and 
passengers of the 59 JAC 427 Cobras, making the safety risk 
inconsequential by comparison to the safety risk associated with 
automobiles having automatic restraint systems.

    No comments were received on the application.
    As noted, the agency has granted Excalibur's application for 
temporary exemption, on grounds that immediate compliance would cause 
it substantial economic hardship. An additional finding was that the 
exemption would be consistent with the public interest and motor 
vehicle safety. This finding was reached in part on the limited number 
of vehicles that will be covered by the exemption during its life. 
Given the fact that there are far fewer vehicles covered by the 
application under consideration, and that the noncompliance apparently 
cannot be remedied by repair, the agency wishes to reach a decision 
that is consistent with that reached in granting the application for 
temporary exemption. Given the fact that there are 15 vehicles involved 
here, and that they comply with the requirements of FMVSS No. 208 that 
were once in effect, Excalibur's noncompliance may be deemed 
inconsequential to safety.
    NHTSA concurs with Excalibur's plan to provide a warning label, but 
points out to Excalibur that not all States have mandatory seatbelt 
laws. Further, the label implies that it is not important to use the 
seatbelt if a vehicle does not have an airbag or other automatic 
restraint system. It is important to use the seatbelts regardless of 
whether there is an automatic restraint system. The agency calls this 
to the manufacturer's attention with the expectation that the label 
provided will be modified to reflect these comments.
    In consideration of the foregoing, it is hereby found that the 
applicant has met its burden of persuasion that the noncompliance 
herein described is inconsequential to safety. Accordingly, its 
application is granted, and the applicant is exempted from providing 
the notification of the noncompliance that is required by 49 U.S.C. 
30118, and from remedying the noncompliance, as required by 49 U.S.C. 
30120.

(15 U.S.C. 1417; delegations of authority at 49 CFR 1.50 and 501.8)

    Issued on: May 18, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-12664 Filed 5-23-95; 8:45 am]
BILLING CODE 4910-59-P