Decision That Nonconforming 1996 and 1997 Lamborghini Diablo Coupe and Roadster Passenger Cars Are Eligible for Importation, 64757-64761 [E6-18518]

Download as PDF Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices The public scoping meeting will be held on November 13, 2006, at Liihikai School, 335 South Papa Avenue, Kahului, HI 96732 from 6:30 p.m. to 9 p.m. Written comments on environmental issues and concerns that should be addressed in the EIS are encouraged, and must be electronically submitted or postmarked by November 30, 2006. ADDRESSES: You may submit comments [identified by DOT DMS Docket Number MARAD–2006–26228] by any of the following methods: • Web site: https://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 7th St., SW., Nassif Building, Room PL– 401, Washington, DC 20590–001. • Hand Delivery: Room PL–401 on the plaza level of the Nassif Building, 400 7th St., SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. Instructions: All submissions must include the Agency name and docket number for this action. Note that all comments received will be posted without change to https://dms.dot.gov including any personal information provided. Please see the Privacy Act heading below. Docket: For access to the docket to read background documents or comments received, go to https:// dms.dot.gov at any time or to Room PL– 401 on the plaza level of the Nassif Building, 400 7th St., SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Maggie D. Blum, Associate Administrator for Port, Intermodal, and Environmental Activities, U.S. Maritime Administration, 400 Seventh Street, SW., Washington, DC 20590, e-mail envmarad@dot.gov. SUPPLEMENTARY INFORMATION: The Hawaii State Department of Transportation (HI DOT) has previously conducted planning for Kahului Harbor, leading to a 2025 Master Plan and Environmental Assessment. However, demand for harbor facilities has been much greater than anticipated, and space for current operations is very tight. The 2025 Master Plan called for development of new pier and harbor space at the west breakwater of the harbor. HI DOT has begun a new master planning process, which will lead to a new set of alternatives to meet current and future harbor needs. The west mstockstill on PROD1PC68 with NOTICES DATES: VerDate Aug<31>2005 15:24 Nov 02, 2006 Jkt 211001 breakwater expansion and other steps to help assure that the harbor supports the continuing prosperity and quality of life of Maui County are under consideration. The EIS will address the following issues: (1) Demand for additional space and facilities at Kahului; (2) organization of harbor space and facilities to promote and preserve orderly cargo operations, passenger operations, and recreational activity; (3) environmental impacts of any proposed alternatives; and (4) additional issues that may emerge from the scoping process. An electronic version of this document and all documents entered into this docket including comments are available at https://dms.dot.gov. Privacy Act Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT’s complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477–78) or you may visit https://dms.dot.gov. (Authority: 49 C.F.R. 1.66) Dated: October 27, 2006. By order of the Maritime Administrator. Joel C. Richard, Secretary, Maritime Administration. [FR Doc. E6–18512 Filed 11–2–06; 8:45 am] BILLING CODE 4910–81–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2003–14628] Decision That Nonconforming 1996 and 1997 Lamborghini Diablo Coupe and Roadster Passenger Cars Are Eligible for Importation National Highway Traffic Safety Administration, DOT. ACTION: Notice of decision by the National Highway Traffic Safety Administration that nonconforming 1996 and 1997 Lamborghini Diablo Coupe and Roadster passenger cars are eligible for importation. AGENCY: SUMMARY: This notice announces the decision by NHTSA that 1996 and 1997 Lamborghini Diablo Coupe and Roadster passenger cars not originally manufactured to comply with all applicable Federal motor vehicle safety PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 64757 standards (FMVSS) are eligible for importation into the United States. 1997 Lamborghini Diablo Coupe passenger cars are eligible for importation because they have safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS. 1996 Lamborghini Diablo Coupe and Roadster passenger cars, and 1997 Lamborghini Diablo Roadster passenger cars, are eligible for importation because they are substantially similar to vehicles originally manufactured for importation into and sale in the United States and certified by their manufacturer as complying with the safety standards (the U.S.-certified versions of the 1996 Lamborghini Diablo Coupe and Roadster and the 1997 Lamborghini Diablo Roadster), and are capable of being readily altered to conform to the standards. DATES: This decision was effective December 19, 2003. The agency notified the petitioner 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 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 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. E:\FR\FM\03NON1.SGM 03NON1 mstockstill on PROD1PC68 with NOTICES 64758 Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices 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. Northern California Diagnostic Laboratories, Inc. of Napa, California (‘‘NCDL’’) (Registered Importer 92–011), petitioned NHTSA to decide whether 1996 and 1997 Lamborghini Diablo Coupe and Roadster passenger cars are eligible for importation into the United States. NHTSA published a notice of the petition on March 12, 2003 (68 FR 11898) to afford an opportunity for public comment. The reader is referred to that notice for a thorough description of the petition. Comments responding to the notice of petition were received from Michael Jay Grossman, the designated agent for the vehicles’ original manufacturer, Automobili Lamborghini S.p.A. (Lamborghini). In its comments, Lamborghini raised issues concerning the basis for the petition, and identified details it contended NCDL had overlooked in describing alterations needed to conform 1996 and 1997 Lamborghini Diablo Coupe and Roadster passenger cars to certain of the FMVSS. The agency accorded NCDL an opportunity to respond to Lamborghini’s comments. After NCDL responded, Lamborghini submitted rebuttals to certain of those responses. The two companies then engaged in a protracted and increasingly contentious series of further responses and rebuttals. The comments, responses, and rebuttals are summarized below, together with NHTSA’s analysis of each matter at issue. 1. Model year of petitioned vehicle: Arguments raised: In its initial comments, Lamborghini took issue with NCDL’s attempt to establish import eligibility for a 1997 Lamborghini Diablo based on the vehicle’s substantial similarity to a 1996 model vehicle. Lamborghini noted that to establish import eligibility for a nonconforming vehicle under 49 U.S.C. 30141(a)(1)(A) and 49 CFR 593.5(a)(1)(i), the vehicle must be substantially similar to a motor vehicle originally manufactured for importation into and sale in the United States and certified by its original manufacturer as complying with all applicable FMVSS, and be of ‘‘the same model year (as defined under regulations of the Secretary of Transportation) as the model of the motor vehicle it is being compared to’’ (citing 49 U.S.C. 30141(a)(1)(A)(iii)). Lamborghini stated that it had designated the specific Lamborghini VerDate Aug<31>2005 15:24 Nov 02, 2006 Jkt 211001 Diablo coupe that NCDL was seeking to conform as a 1997 model year vehicle and noted that it did not produce any 1997 Diablo coupes for sale in the United States or certify those vehicles to U.S. standards. NCDL responded that because it imported the vehicle in question, it can properly be regarded as the vehicle’s ‘‘manufacturer,’’ as that term is defined in 49 U.S.C. 30102(a)(5). That section states that ‘‘manufacturer’’ means ‘‘a person (A) manufacturing or assembling motor vehicles or motor vehicle equipment; or (B) importing motor vehicles or motor vehicle equipment for resale.’’ NCDL asserted that as the vehicle’s manufacturer, it reserved the right to declare the vehicle a 1996 model year vehicle pursuant to 49 CFR 593.4. That section defines the term ‘‘model year’’ as ‘‘the year used by a manufacturer to designate a discrete vehicle model irrespective of the calendar year in which the vehicle was actually produced.’’ Moreover, as the ‘‘manufacturer,’’ NCDL declared that it planned to change the tenth digit of the vehicle’s vehicle identification number (VIN) to the character ‘‘T,’’ to reflect 1996 as the vehicle’s model year designation. Addressing Lamborghini’s observation that it did not certify any 1997 Diablo coupes for sale in the United States, NCDL observed that individual import eligibility decisions frequently encompass a range of body types and model years under a single eligibility number. Lamborghini countered these arguments by reiterating that it had designated the vehicle at issue as a 1997 model year vehicle and asserting that under the agency’s regulations, the original manufacturer exercises sole responsibility for making a model year designation. Lamborghini observed that even though a registered importer may be considered a vehicle’s manufacturer for certain purposes, such as providing notification and remedy for safetyrelated defects and noncompliances with safety standards under 49 CFR parts 573 and 477, the regulations at 49 CFR 565.5(b) that establish vehicle identification numbering requirements specify that importers are to use the ‘‘identification number assigned by the original manufacturer.’’ Lamborghini further observed that 18 U.S.C. 511(a) makes it a crime, punishable by a fine or imprisonment for up to 5 years, to knowingly remove, obliterate, tamper with, or alter a VIN. Lamborghini also noted that the agency’s regulations at 49 CFR 567.4(k)(4)(i) require an RI, in certifying a vehicle, to use the model year ‘‘as reported by the manufacturer PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 that produced or assembled the vehicle.’’ Lamborghini observed that NCDL’s contention that a single eligibility decision can apply to multiple models and model years does not provide the means to obtain import eligibility for a 1997 model vehicle on the basis of substantial similarity when the original manufacturer did not produce the same model and model year vehicle for sale in the United States. Lamborghini noted that although a 1997 model year Lamborghini Roadster was produced for sale in the United States, NCDL did not identify this vehicle in its petition as substantially similar to the petitioned vehicle, but instead compared that vehicle to a model year 1996 Diablo Coupe. NCDL retorted that for the purpose of calculating a manufacturer’s production for compliance with certain phase-in requirements of FMVSS No. 208 Occupant Crash Protection, paragraph S4.1.5.2.1 of that standard states that a ‘‘passenger car that is imported into the United States shall be attributed to the importer’’ (citing 49 CFR 571.208). NCDL further observed that the petition vehicle was manufactured in December 1996 and that the year 1996 is imprinted on a door plate affixed to the vehicle. Lamborghini responded that the door plate simply identifies the production year of the vehicle, and not its model year designation. Lamborghini further noted that although the petition vehicle’s VIN was not required to conform to 49 CFR part 565, Lamborghini has long used the International Standard Organization (ISO) 17-digit VIN coding scheme [ISO 3779], and that under that scheme, the vehicle was designated as a 1997 model year vehicle. NCDL contended that other than using the character ‘‘V’’ as the tenth digit of the vehicle’s VIN, Lamborghini did nothing to designate the vehicle at issue as a 1997 model year vehicle. Agency’s Analysis: NHTSA agrees with Lamborghini that under the agency’s regulations at 49 CFR 567.4(k)(4)(i), an RI must utilize the model year ‘‘as reported by the manufacturer that produced or assembled the vehicle’’ in certifying a vehicle’s compliance with applicable FMVSS, bumper, and theft prevention standards. As such, the RI is not free to assign the vehicle another model year designation, and, as noted by Lamborghini, would be in violation of NHTSA’s regulations at 49 CFR 565.5(b), and risk a criminal violation of 18 U.S.C. 511(a) if, for the purpose of redesignating the vehicle’s model year, the RI were to make any changes to the E:\FR\FM\03NON1.SGM 03NON1 mstockstill on PROD1PC68 with NOTICES Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices VIN originally assigned to the vehicle. Insofar as NHTSA’s regulations are concerned, section 565.5 requires a registered importer to use the VIN assigned by the original manufacturer and to affix to the vehicle a plate or label visible through its glazing that shows the original manufacturerassigned VIN. Addressing the issue that NCDL raised concerning a single eligibility decision encompassing multiple body styles, configurations, and model years, the agency notes that when these decisions are based on a petition, they are dependent on the petitioner identifying all body styles, configurations, and model years that it wishes to be included in the decision, as well as the extent to which those body styles, configurations, and model years are equally compliant with, or capable of compliance with, the FMVSS, and in the case of petitions filed under 49 U.S.C. § 30141(a)(1)(A), whether substantially similar models have been certified as conforming to all applicable FMVSS. Accordingly, NHTSA has limited petition grants to single body styles and model years, and has also granted eligibility to multiple model year series of body styles for single platform models. NCDL sought import eligibility for the 1996 and 1997 Lamborghini Diablo Coupe and Roadster based on their substantial similarity to a vehicle the petition identified as a ‘‘1996 Lamborghini Diablo imported by Lamborghini of North America.’’ Information subsequently provided by Lamborghini made it apparent that the 1997 coupe was not originally certified as conforming to the FMVSS. Notwithstanding this development, NCDL’s attempt to obtain import eligibility for the 1997 Lamborghini Diablo Coupe based on its substantial similarity to a U.S.-certified 1996 model did not prove fatal to its petition. NHTSA ultimately decided to process the petition, insofar as it sought import eligibility for the 1997 Lamborghini Diablo Coupe, under 49 U.S.C. 30141(a)(1)(B), on the theory that the vehicle has safety features that comply with, or are capable of complying with, all applicable FMVSS on the basis of destructive test information or such other evidence the agency decides is adequate. Other evidence that NHTSA will accept includes information showing that the same model vehicle of an earlier model year was certified by its original manufacturer as complying with an applicable standard, provided the standard did not change between the earlier model year and the one in question and there are no differences in VerDate Aug<31>2005 15:24 Nov 02, 2006 Jkt 211001 terms of structure, components, or equipment between the earlier model year vehicle and the one in issue that could influence the vehicle’s compliance with the standard. Because there was a U.S.-certified version of the 1996 and 1997 Lamborghini Diablo Roadster and of the 1996 Diablo Coupe, the agency was able to continue processing the petition, insofar as it pertained to those body configurations and model years, under 49 U.S.C. 30141(a)(1)(A). 2. Vehicles’ capability of being readily altered to comply with applicable standards: Lamborghini asserted that NCDL had failed to make a showing that 1996 and 1997 Lamborghini Diablo passenger cars can be readily altered to comply with all applicable requirements of the FMVSS. Lamborghini contended that the cost of parts and labor to conform the vehicles to certain of the standards is great enough to preclude a finding that the vehicles are readily capable of being altered to comply with those standards. Lamborghini estimated that it would cost $850 for parts and labor to perform the modifications identified in the petition to conform the vehicles to FMVSS No. 101 Controls and Displays. As described in the petition, those modifications consist of the addition of unnamed dashboard controls and displays that conform to the requirements of the standard. Lamborghini estimated that it would cost $1,346 and require 18 hours of labor to perform the modifications identified in the petition to conform the vehicles to FMVSS No. 108 Lamps, Reflective Devices, and Associated Equipment. As described in the petition, those modifications consist of the addition of unnamed lamps, reflective devices and associated equipment that meet the requirements of the standard. Lamborghini also estimated that it would cost $500 for parts, and require 3 hours of labor to perform modifications necessary to conform the vehicles to FMVSS No. 114 Theft Protection; that it would cost $1,900 for parts and require 12 hours of labor to conform the vehicles to FMVSS No. 201 Occupant Protection in Interior Impacts; that it would cost $14,500 for parts and require 60 hours of labor to conform the vehicles to FMVSS No. 208 Occupant Crash Protection if the importer would have to install air bags or $1,900 for parts and 12 hours of labor if automatic seat belts could be installed; that it would cost $11,000 for parts and require 40 hours of labor to conform the vehicles to FMVSS No. 214 Side Impact Protection; that it would cost $1,900 for parts and require 5 hours of labor to PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 64759 conform the vehicles to FMVSS No. 301 Fuel System Integrity; and that it would cost in excess of $10,000 for parts and require 10 hours of labor to conform the vehicles to the Federal Bumper Standard, as found in 49 CFR part 581. NCDL responded with the observation that the time and costs associated with the tasks necessary to bring a nonconforming vehicle into compliance with applicable standards have no bearing on whether the vehicle can be deemed eligible for importation by NHTSA. Agency Analysis: Contrary to the assumption expressed by NCDL, the cost of performing modifications necessary to conform a motor vehicle to applicable FMVSS can be a factor in determining whether the vehicle is ‘‘capable of being readily altered to comply,’’ which is the standard for granting import eligibility under 49 U.S.C. 30141(a)(1)(A) based on the vehicle’s substantial similarity to a U.S.certified vehicle. That being said, the agency recognizes that costs are a relative factor, and must be considered in the context of the vehicle that is the subject of the eligibility petition. In the case of a costly vehicle such as a Laborghini Diablo, the costs of parts and labor can be far greater than they are for a less expensive production vehicle. The agency further notes that the modifications identified by NCDL consist primarily of the replacement of non-U.S.-certified model components with U.S.-certified model components that can be accomplished without extensive redesign or refabrication of vehicle mountings and structure. With those considerations in mind, the agency has concluded that the cost and labor figures provided by Lamborghini would not preclude the vehicles at issue from being found readily capable of being modified to conform to applicable standards, and on that basis, eligible for importation. 3. Other issues involving specific standards: Aside from the cost factors discussed above, Lamborghini made comments regarding the capability of the vehicles to be modified to meet the requirements of certain standards. Set forth below is a discussion of these comments, in order of the standards to which the comments relate. (a) FMVSS No. 114 Theft Protection and 49 CFR part 541 Federal Motor Vehicle Theft Prevention Standard: The petition stated the requirements of FMVSS No. 114 have been moved to 49 CFR part 541 and claimed that 1996 and 1997 Lamborghini Diablo Coupes and Roadsters are not subject to this standard. Lamborghini responded by asserting that the vehicles are in fact E:\FR\FM\03NON1.SGM 03NON1 64760 Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices subject to the standard. NCDL thereupon amended it’s petition by substituting the original discussion of FMVSS No. 114 compliance issues with the following: mstockstill on PROD1PC68 with NOTICES FMVSS No. 114: Theft Protection: with the exception of the warning required by S4.5, this 6 speed manual transmission vehicle is equipped with a key locking system that conforms to the requirements of this section. A warning system to the driver will be installed which is activated pursuant to S4.5 whenever the key required by S4.2 has been left in the locking system and the driver’s door is opened. NCDL offered the further explanation that FMVSS No. 114 and 49 CFR part 541 are two mutually exclusive standards and that 49 CFR part 541 does not apply to the subject vehicles. Agency Analysis: Conformity packages submitted for vehicles imported under the decision must demonstrate that the vehicle is equipped with a warning system activated whenever the key has been left in the ignition locking system and the driver’s door is opened. 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 1996 and 1997 Lamborghini Diablo passenger cars. The agency further notes that compliance with CFR part 541 is 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 Theft Prevention Standard at CFR part 541 is not an FMVSS. However, vehicles that are subject to the Theft Prevention Standard but do not comply with that standard at the time of entry cannot be lawfully imported into the United States. Unlike the situation for Federal motor vehicle safety and bumper standards, there is no authority under the statute governing the Theft Prevention Standard (49 U.S.C. Chapter 331) to permit a vehicle subject to that standard that does not conform to its requirements to be brought into conformity following importation. (b) FMVSS No. 208 Occupant Crash Protection: The petition stated that U.S.model automatic seat belts must be installed in the vehicles to meet the automatic crash protection requirements of this standard. Lamborghini countered that NCDL may be subject to the air bag phase-in requirements of the standard, and as such, would have to install air bags instead of automatic seat belts at VerDate Aug<31>2005 15:24 Nov 02, 2006 Jkt 211001 the driver’s and passenger’s seating positions to comply with the standard. NCDL responded by expressing the belief that at least some of the U.S.model 1996 and 1997 Lamborghini Diablos were certified by their original manufacturer as conforming to all applicable requirements of FMVSS No. 208 without the use of airbags. Lamborghini retorted that mid-year 1997 U.S.-certified Roadsters were equipped with air bags. Lamborghini expressed the further belief that NCDL could not shield itself from liability for failing to equip the vehicles with air bags by claiming that it had no reason to know, despite exercising due care, that such equipment was needed. Agency Analysis: NHTSA has long taken the position that RIs are not subject to the requirements of standards that are being phased in, but must comply with those requirements once they apply to 100 percent of a manufacturer’s production. The requirement for air bags to be installed at the driver’s and front outboard passenger’s seating position applies to 100 percent of passenger cars manufactured on or after September 1, 1997. As a consequence, an RI can meet the automatic protection requirements of the standard by installing conforming automatic seat belts in passenger cars manufactured prior to that date. Therefore, NCDL or another RI could meet the standard by installing automatic seat belts in 1996 and 1997 Lamborghini Diablo passenger cars manufactured prior to September 1, 1997. Vehicles manufactured on or after that date would require the installation of U.S.-model air bag systems to meet the standard. The agency further notes that conformity packages submitted for vehicles imported under this 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 1996 and 1997 Lamborghini Diablo passenger cars. (c) FMVSS No. 214 Side Impact Protection: NCDL claimed in the petition that the vehicles, as originally manufactured, meet the requirements of this standard. Lamborghini disputed this in its response, and noted that it had been granted a temporary exemption from the dynamic requirements of the standard with respect to vehicles manufactured prior PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 to September 1, 2006 (citing notice of grant at 59 FR 59458). Lamborghini further contended that the issue of whether NCDL is subject to the requirements covered by the exemption must be resolved before it submits a conformity package for any of the affected vehicles. NCDL countered with the observation that regardless of whether the vehicle is U.S. certified or not, the doors in all 1992 through 1996 and 1998 Lamborghini Diablo Coupes are equipped with door beams, and in fact, all have the same replacement part number. NCDL further contended that it should be accorded the same temporary exemption from FMVSS No. 214 as was granted to Lamborghini. In response, Lamborghini acknowledged that it was mistaken in stating that the doors on the non-U.S. certified vehicles differ from those on U.S.-certified models. Lamborghini noted, however, that modifications were needed to the fuel filler neck and gas tank to conform the vehicles not only to FMVSS No. 301 Fuel System Integrity (as discussed below), but to FMVSS Nos. 214 as well. Agency Analysis: In situations where the original manufacturer has been granted a temporary exemption from one or more requirements of applicable standards under 49 CFR part 555, an RI is still required to conform a vehicle covered by such an exemption to all applicable FMVSS, including requirements covered by the temporary exemption. This is because temporary exemptions under 49 CFR part 555 are granted only to the petitioning manufacturer, and cannot be exercised by any other party, including an RI. As a consequence, NCDL or other RIs must conform the subject non-U.S. certified Diablos to the dynamic impact requirements of the standard. Lamborghini’s acknowledgment that non-U.S. certified Lamborghini Diablos of the model years in question were equipped with the same doors as those installed on U.S.-certified vehicles eliminates the need for the vehicles to be conformed to the static requirements of the standard. NHTSA notes that the other modifications described by Lamborghini would not prelude the vehicles from being modified to conform to FMVSS No. 214 in a manner sufficient to be 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. (d) FMVSS No. 301 Fuel System Integrity: NCDL stated in the petition E:\FR\FM\03NON1.SGM 03NON1 Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices that the vehicles, as originally manufactured, meet the requirements of this standard. Lamborghini countered that the vehicles do not conform and contended that modifications were needed to the fuel filler neck and gas tank to bring the vehicles into compliance with this standard as well as FMVSS Nos. 214 (as noted above). Agency Analysis: NHTSA concluded that non-U.S. certified Lamborghini Diablo passenger cars modified as described by Lamborghini will meet the requirements of FMVSS No. 301. The agency further notes that those modifications would not preclude 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. (e) 49 CFR Part 581 Bumper Standard: NCDL stated in the petition that U.S.model bumper supports must be installed in the vehicles to meet the requirements of this standard. Lamborghini countered that Bumper Standard compliance issues are irrelevant to whether a vehicle can be deemed eligible for importation, as that decision must be predicated on the vehicle’s capability of being modified to conform to the FMVSS alone, and the Bumper Standard is not an FMVSS. Agency Analysis: The agency agrees with Lamborghini that Bumper Standard compliance issues are not relevant to an import eligibility decision for the reasons given. The agency observes, however, that 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. mstockstill on PROD1PC68 with NOTICES Conclusion In view of the above considerations, NHTSA decided to grant the petition. 15:24 Nov 02, 2006 Jkt 211001 Final Decision Accordingly, on the basis of the foregoing, NHTSA decided that 1996 Lamborghini Diablo Coupe and Roadster passenger cars and 1997 Lamborghini Diablo Roadster passenger cars that were not originally manufactured to comply with all applicable FMVSS, are substantially similar to 1996 Lamborghini Diablo Coupe and Roadster passenger cars and 1997 Lamborghini Roadster passenger cars originally manufactured for importation into and sale in the United States and certified under 49 U.S.C. 30115, and are capable of being readily altered to conform to all applicable FMVSS. In addition, the agency decided that 1997 Lamborghini Diablo Coupe passenger cars that were not originally manufactured to comply with all applicable 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. 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. Issued on: October 26, 2006. Jeffrey Giuseppe, Acting Director, Office of Vehicle Safety Compliance. [FR Doc. E6–18518 Filed 11–2–06; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket Nos. NHTSA–2003–15470 and NHTSA–2003–16031] Denial of Petitions for Import Eligibility for Nonconforming 2001–2002 Mitsubishi Evolution VII and 2003 Mitsubishi Evolution VIII Left Hand Drive Passenger Cars National Highway Traffic Safety Administration, DOT. ACTION: Denial of Petitions for Import Eligibility for nonconforming 2001– 2002 Mitsubishi Evolution VII and 2003 Mitsubishi Evolution VIII left hand drive passenger cars. AGENCY: 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. VSP–416 is the vehicle eligibility number assigned to the 1996 Lamborghini Diablo Coupe and Roadster and the 1997 Roadster, and VerDate Aug<31>2005 VCP–26 is the vehicle eligibility number assigned to the 1997 Lamborghini Diablo Coupe admissible under this notice of final decision. SUMMARY: This document sets forth the reasons for denial of two petitions submitted to the National Highway Traffic Safety Administration (NHTSA) requesting the agency to decide that lefthand drive (LHD) 2001–2002 Mitsubishi PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 64761 Evolution VII and 2003 Mitsubishi Evolution VIII LHD passenger cars that were not originally manufactured to comply with all applicable Federal Motor Vehicle Safety Standards (FMVSS) are eligible for importation into the United States. The petitions contended that 2001–2002 Mitsubishi Evolution VII LHD passenger cars are eligible for importation because they have safety features that comply with, or are capable of being altered to comply with, all applicable FMVSS, and that 2003 Mitsubishi Evolution VIII LHD passenger cars are eligible for importation because they are substantially similar to vehicles that were originally manufactured for importation into and sale in the United States and that were certified as complying with the safety standards (the U.S.-certified version of 2003 Mitsubishi Evolution VIII LHD passenger cars), and are capable of being readily altered to conform to those standards. DATES: These denials were effective December 21, 2004. The agency notified the petitioner at that time that the subject petitions were being denied under 49 CFR 593.7(e). 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 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 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 E:\FR\FM\03NON1.SGM 03NON1

Agencies

[Federal Register Volume 71, Number 213 (Friday, November 3, 2006)]
[Notices]
[Pages 64757-64761]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18518]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2003-14628]


Decision That Nonconforming 1996 and 1997 Lamborghini Diablo 
Coupe and Roadster 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 1996 and 1997 Lamborghini Diablo 
Coupe and Roadster passenger cars are eligible for importation.

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SUMMARY: This notice announces the decision by NHTSA that 1996 and 1997 
Lamborghini Diablo Coupe and Roadster passenger cars not originally 
manufactured to comply with all applicable Federal motor vehicle safety 
standards (FMVSS) are eligible for importation into the United States. 
1997 Lamborghini Diablo Coupe passenger cars are eligible for 
importation because they have safety features that comply with, or are 
capable of being altered to comply with, all applicable FMVSS. 1996 
Lamborghini Diablo Coupe and Roadster passenger cars, and 1997 
Lamborghini Diablo Roadster passenger cars, are eligible for 
importation because they are substantially similar to vehicles 
originally manufactured for importation into and sale in the United 
States and certified by their manufacturer as complying with the safety 
standards (the U.S.-certified versions of the 1996 Lamborghini Diablo 
Coupe and Roadster and the 1997 Lamborghini Diablo Roadster), and are 
capable of being readily altered to conform to the standards.

DATES: This decision was effective December 19, 2003. The agency 
notified the petitioner 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 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 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.

[[Page 64758]]

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.
    Northern California Diagnostic Laboratories, Inc. of Napa, 
California (``NCDL'') (Registered Importer 92-011), petitioned NHTSA to 
decide whether 1996 and 1997 Lamborghini Diablo Coupe and Roadster 
passenger cars are eligible for importation into the United States. 
NHTSA published a notice of the petition on March 12, 2003 (68 FR 
11898) to afford an opportunity for public comment. The reader is 
referred to that notice for a thorough description of the petition.
    Comments responding to the notice of petition were received from 
Michael Jay Grossman, the designated agent for the vehicles' original 
manufacturer, Automobili Lamborghini S.p.A. (Lamborghini). In its 
comments, Lamborghini raised issues concerning the basis for the 
petition, and identified details it contended NCDL had overlooked in 
describing alterations needed to conform 1996 and 1997 Lamborghini 
Diablo Coupe and Roadster passenger cars to certain of the FMVSS. The 
agency accorded NCDL an opportunity to respond to Lamborghini's 
comments. After NCDL responded, Lamborghini submitted rebuttals to 
certain of those responses. The two companies then engaged in a 
protracted and increasingly contentious series of further responses and 
rebuttals. The comments, responses, and rebuttals are summarized below, 
together with NHTSA's analysis of each matter at issue.
    1. Model year of petitioned vehicle: Arguments raised: In its 
initial comments, Lamborghini took issue with NCDL's attempt to 
establish import eligibility for a 1997 Lamborghini Diablo based on the 
vehicle's substantial similarity to a 1996 model vehicle. Lamborghini 
noted that to establish import eligibility for a nonconforming vehicle 
under 49 U.S.C. 30141(a)(1)(A) and 49 CFR 593.5(a)(1)(i), the vehicle 
must be substantially similar to a motor vehicle originally 
manufactured for importation into and sale in the United States and 
certified by its original manufacturer as complying with all applicable 
FMVSS, and be of ``the same model year (as defined under regulations of 
the Secretary of Transportation) as the model of the motor vehicle it 
is being compared to'' (citing 49 U.S.C. 30141(a)(1)(A)(iii)). 
Lamborghini stated that it had designated the specific Lamborghini 
Diablo coupe that NCDL was seeking to conform as a 1997 model year 
vehicle and noted that it did not produce any 1997 Diablo coupes for 
sale in the United States or certify those vehicles to U.S. standards.
    NCDL responded that because it imported the vehicle in question, it 
can properly be regarded as the vehicle's ``manufacturer,'' as that 
term is defined in 49 U.S.C. 30102(a)(5). That section states that 
``manufacturer'' means ``a person (A) manufacturing or assembling motor 
vehicles or motor vehicle equipment; or (B) importing motor vehicles or 
motor vehicle equipment for resale.'' NCDL asserted that as the 
vehicle's manufacturer, it reserved the right to declare the vehicle a 
1996 model year vehicle pursuant to 49 CFR 593.4. That section defines 
the term ``model year'' as ``the year used by a manufacturer to 
designate a discrete vehicle model irrespective of the calendar year in 
which the vehicle was actually produced.'' Moreover, as the 
``manufacturer,'' NCDL declared that it planned to change the tenth 
digit of the vehicle's vehicle identification number (VIN) to the 
character ``T,'' to reflect 1996 as the vehicle's model year 
designation. Addressing Lamborghini's observation that it did not 
certify any 1997 Diablo coupes for sale in the United States, NCDL 
observed that individual import eligibility decisions frequently 
encompass a range of body types and model years under a single 
eligibility number.
    Lamborghini countered these arguments by reiterating that it had 
designated the vehicle at issue as a 1997 model year vehicle and 
asserting that under the agency's regulations, the original 
manufacturer exercises sole responsibility for making a model year 
designation. Lamborghini observed that even though a registered 
importer may be considered a vehicle's manufacturer for certain 
purposes, such as providing notification and remedy for safety-related 
defects and noncompliances with safety standards under 49 CFR parts 573 
and 477, the regulations at 49 CFR 565.5(b) that establish vehicle 
identification numbering requirements specify that importers are to use 
the ``identification number assigned by the original manufacturer.'' 
Lamborghini further observed that 18 U.S.C. 511(a) makes it a crime, 
punishable by a fine or imprisonment for up to 5 years, to knowingly 
remove, obliterate, tamper with, or alter a VIN. Lamborghini also noted 
that the agency's regulations at 49 CFR 567.4(k)(4)(i) require an RI, 
in certifying a vehicle, to use the model year ``as reported by the 
manufacturer that produced or assembled the vehicle.''
    Lamborghini observed that NCDL's contention that a single 
eligibility decision can apply to multiple models and model years does 
not provide the means to obtain import eligibility for a 1997 model 
vehicle on the basis of substantial similarity when the original 
manufacturer did not produce the same model and model year vehicle for 
sale in the United States. Lamborghini noted that although a 1997 model 
year Lamborghini Roadster was produced for sale in the United States, 
NCDL did not identify this vehicle in its petition as substantially 
similar to the petitioned vehicle, but instead compared that vehicle to 
a model year 1996 Diablo Coupe.
    NCDL retorted that for the purpose of calculating a manufacturer's 
production for compliance with certain phase-in requirements of FMVSS 
No. 208 Occupant Crash Protection, paragraph S4.1.5.2.1 of that 
standard states that a ``passenger car that is imported into the United 
States shall be attributed to the importer'' (citing 49 CFR 571.208). 
NCDL further observed that the petition vehicle was manufactured in 
December 1996 and that the year 1996 is imprinted on a door plate 
affixed to the vehicle.
    Lamborghini responded that the door plate simply identifies the 
production year of the vehicle, and not its model year designation. 
Lamborghini further noted that although the petition vehicle's VIN was 
not required to conform to 49 CFR part 565, Lamborghini has long used 
the International Standard Organization (ISO) 17-digit VIN coding 
scheme [ISO 3779], and that under that scheme, the vehicle was 
designated as a 1997 model year vehicle. NCDL contended that other than 
using the character ``V'' as the tenth digit of the vehicle's VIN, 
Lamborghini did nothing to designate the vehicle at issue as a 1997 
model year vehicle.
    Agency's Analysis: NHTSA agrees with Lamborghini that under the 
agency's regulations at 49 CFR 567.4(k)(4)(i), an RI must utilize the 
model year ``as reported by the manufacturer that produced or assembled 
the vehicle'' in certifying a vehicle's compliance with applicable 
FMVSS, bumper, and theft prevention standards. As such, the RI is not 
free to assign the vehicle another model year designation, and, as 
noted by Lamborghini, would be in violation of NHTSA's regulations at 
49 CFR 565.5(b), and risk a criminal violation of 18 U.S.C. 511(a) if, 
for the purpose of redesignating the vehicle's model year, the RI were 
to make any changes to the

[[Page 64759]]

VIN originally assigned to the vehicle. Insofar as NHTSA's regulations 
are concerned, section 565.5 requires a registered importer to use the 
VIN assigned by the original manufacturer and to affix to the vehicle a 
plate or label visible through its glazing that shows the original 
manufacturer-assigned VIN.
    Addressing the issue that NCDL raised concerning a single 
eligibility decision encompassing multiple body styles, configurations, 
and model years, the agency notes that when these decisions are based 
on a petition, they are dependent on the petitioner identifying all 
body styles, configurations, and model years that it wishes to be 
included in the decision, as well as the extent to which those body 
styles, configurations, and model years are equally compliant with, or 
capable of compliance with, the FMVSS, and in the case of petitions 
filed under 49 U.S.C. Sec.  30141(a)(1)(A), whether substantially 
similar models have been certified as conforming to all applicable 
FMVSS. Accordingly, NHTSA has limited petition grants to single body 
styles and model years, and has also granted eligibility to multiple 
model year series of body styles for single platform models.
    NCDL sought import eligibility for the 1996 and 1997 Lamborghini 
Diablo Coupe and Roadster based on their substantial similarity to a 
vehicle the petition identified as a ``1996 Lamborghini Diablo imported 
by Lamborghini of North America.'' Information subsequently provided by 
Lamborghini made it apparent that the 1997 coupe was not originally 
certified as conforming to the FMVSS. Notwithstanding this development, 
NCDL's attempt to obtain import eligibility for the 1997 Lamborghini 
Diablo Coupe based on its substantial similarity to a U.S.-certified 
1996 model did not prove fatal to its petition. NHTSA ultimately 
decided to process the petition, insofar as it sought import 
eligibility for the 1997 Lamborghini Diablo Coupe, under 49 U.S.C. 
30141(a)(1)(B), on the theory that the vehicle has safety features that 
comply with, or are capable of complying with, all applicable FMVSS on 
the basis of destructive test information or such other evidence the 
agency decides is adequate. Other evidence that NHTSA will accept 
includes information showing that the same model vehicle of an earlier 
model year was certified by its original manufacturer as complying with 
an applicable standard, provided the standard did not change between 
the earlier model year and the one in question and there are no 
differences in terms of structure, components, or equipment between the 
earlier model year vehicle and the one in issue that could influence 
the vehicle's compliance with the standard. Because there was a U.S.-
certified version of the 1996 and 1997 Lamborghini Diablo Roadster and 
of the 1996 Diablo Coupe, the agency was able to continue processing 
the petition, insofar as it pertained to those body configurations and 
model years, under 49 U.S.C. 30141(a)(1)(A).
    2. Vehicles' capability of being readily altered to comply with 
applicable standards: Lamborghini asserted that NCDL had failed to make 
a showing that 1996 and 1997 Lamborghini Diablo passenger cars can be 
readily altered to comply with all applicable requirements of the 
FMVSS. Lamborghini contended that the cost of parts and labor to 
conform the vehicles to certain of the standards is great enough to 
preclude a finding that the vehicles are readily capable of being 
altered to comply with those standards.
    Lamborghini estimated that it would cost $850 for parts and labor 
to perform the modifications identified in the petition to conform the 
vehicles to FMVSS No. 101 Controls and Displays. As described in the 
petition, those modifications consist of the addition of unnamed 
dashboard controls and displays that conform to the requirements of the 
standard.
    Lamborghini estimated that it would cost $1,346 and require 18 
hours of labor to perform the modifications identified in the petition 
to conform the vehicles to FMVSS No. 108 Lamps, Reflective Devices, and 
Associated Equipment. As described in the petition, those modifications 
consist of the addition of unnamed lamps, reflective devices and 
associated equipment that meet the requirements of the standard.
    Lamborghini also estimated that it would cost $500 for parts, and 
require 3 hours of labor to perform modifications necessary to conform 
the vehicles to FMVSS No. 114 Theft Protection; that it would cost 
$1,900 for parts and require 12 hours of labor to conform the vehicles 
to FMVSS No. 201 Occupant Protection in Interior Impacts; that it would 
cost $14,500 for parts and require 60 hours of labor to conform the 
vehicles to FMVSS No. 208 Occupant Crash Protection if the importer 
would have to install air bags or $1,900 for parts and 12 hours of 
labor if automatic seat belts could be installed; that it would cost 
$11,000 for parts and require 40 hours of labor to conform the vehicles 
to FMVSS No. 214 Side Impact Protection; that it would cost $1,900 for 
parts and require 5 hours of labor to conform the vehicles to FMVSS No. 
301 Fuel System Integrity; and that it would cost in excess of $10,000 
for parts and require 10 hours of labor to conform the vehicles to the 
Federal Bumper Standard, as found in 49 CFR part 581.
    NCDL responded with the observation that the time and costs 
associated with the tasks necessary to bring a nonconforming vehicle 
into compliance with applicable standards have no bearing on whether 
the vehicle can be deemed eligible for importation by NHTSA.
    Agency Analysis: Contrary to the assumption expressed by NCDL, the 
cost of performing modifications necessary to conform a motor vehicle 
to applicable FMVSS can be a factor in determining whether the vehicle 
is ``capable of being readily altered to comply,'' which is the 
standard for granting import eligibility under 49 U.S.C. 30141(a)(1)(A) 
based on the vehicle's substantial similarity to a U.S.-certified 
vehicle. That being said, the agency recognizes that costs are a 
relative factor, and must be considered in the context of the vehicle 
that is the subject of the eligibility petition. In the case of a 
costly vehicle such as a Laborghini Diablo, the costs of parts and 
labor can be far greater than they are for a less expensive production 
vehicle. The agency further notes that the modifications identified by 
NCDL consist primarily of the replacement of non-U.S.-certified model 
components with U.S.-certified model components that can be 
accomplished without extensive redesign or refabrication of vehicle 
mountings and structure. With those considerations in mind, the agency 
has concluded that the cost and labor figures provided by Lamborghini 
would not preclude the vehicles at issue from being found readily 
capable of being modified to conform to applicable standards, and on 
that basis, eligible for importation.
    3. Other issues involving specific standards: Aside from the cost 
factors discussed above, Lamborghini made comments regarding the 
capability of the vehicles to be modified to meet the requirements of 
certain standards. Set forth below is a discussion of these comments, 
in order of the standards to which the comments relate.
    (a) FMVSS No. 114 Theft Protection and 49 CFR part 541 Federal 
Motor Vehicle Theft Prevention Standard: The petition stated the 
requirements of FMVSS No. 114 have been moved to 49 CFR part 541 and 
claimed that 1996 and 1997 Lamborghini Diablo Coupes and Roadsters are 
not subject to this standard. Lamborghini responded by asserting that 
the vehicles are in fact

[[Page 64760]]

subject to the standard. NCDL thereupon amended it's petition by 
substituting the original discussion of FMVSS No. 114 compliance issues 
with the following:

    FMVSS No. 114: Theft Protection: with the exception of the 
warning required by S4.5, this 6 speed manual transmission vehicle 
is equipped with a key locking system that conforms to the 
requirements of this section. A warning system to the driver will be 
installed which is activated pursuant to S4.5 whenever the key 
required by S4.2 has been left in the locking system and the 
driver's door is opened.

    NCDL offered the further explanation that FMVSS No. 114 and 49 CFR 
part 541 are two mutually exclusive standards and that 49 CFR part 541 
does not apply to the subject vehicles.
    Agency Analysis: Conformity packages submitted for vehicles 
imported under the decision must demonstrate that the vehicle is 
equipped with a warning system activated whenever the key has been left 
in the ignition locking system and the driver's door is opened. 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 1996 and 1997 
Lamborghini Diablo passenger cars.
    The agency further notes that compliance with CFR part 541 is 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 Theft Prevention Standard at 
CFR part 541 is not an FMVSS. However, vehicles that are subject to the 
Theft Prevention Standard but do not comply with that standard at the 
time of entry cannot be lawfully imported into the United States. 
Unlike the situation for Federal motor vehicle safety and bumper 
standards, there is no authority under the statute governing the Theft 
Prevention Standard (49 U.S.C. Chapter 331) to permit a vehicle subject 
to that standard that does not conform to its requirements to be 
brought into conformity following importation.
    (b) FMVSS No. 208 Occupant Crash Protection: The petition stated 
that U.S.-model automatic seat belts must be installed in the vehicles 
to meet the automatic crash protection requirements of this standard. 
Lamborghini countered that NCDL may be subject to the air bag phase-in 
requirements of the standard, and as such, would have to install air 
bags instead of automatic seat belts at the driver's and passenger's 
seating positions to comply with the standard. NCDL responded by 
expressing the belief that at least some of the U.S.-model 1996 and 
1997 Lamborghini Diablos were certified by their original manufacturer 
as conforming to all applicable requirements of FMVSS No. 208 without 
the use of airbags. Lamborghini retorted that mid-year 1997 U.S.-
certified Roadsters were equipped with air bags. Lamborghini expressed 
the further belief that NCDL could not shield itself from liability for 
failing to equip the vehicles with air bags by claiming that it had no 
reason to know, despite exercising due care, that such equipment was 
needed.
    Agency Analysis: NHTSA has long taken the position that RIs are not 
subject to the requirements of standards that are being phased in, but 
must comply with those requirements once they apply to 100 percent of a 
manufacturer's production. The requirement for air bags to be installed 
at the driver's and front outboard passenger's seating position applies 
to 100 percent of passenger cars manufactured on or after September 1, 
1997. As a consequence, an RI can meet the automatic protection 
requirements of the standard by installing conforming automatic seat 
belts in passenger cars manufactured prior to that date. Therefore, 
NCDL or another RI could meet the standard by installing automatic seat 
belts in 1996 and 1997 Lamborghini Diablo passenger cars manufactured 
prior to September 1, 1997. Vehicles manufactured on or after that date 
would require the installation of U.S.-model air bag systems to meet 
the standard.
    The agency further notes that conformity packages submitted for 
vehicles imported under this 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 1996 and 1997 
Lamborghini Diablo passenger cars.
    (c) FMVSS No. 214 Side Impact Protection: NCDL claimed in the 
petition that the vehicles, as originally manufactured, meet the 
requirements of this standard. Lamborghini disputed this in its 
response, and noted that it had been granted a temporary exemption from 
the dynamic requirements of the standard with respect to vehicles 
manufactured prior to September 1, 2006 (citing notice of grant at 59 
FR 59458). Lamborghini further contended that the issue of whether NCDL 
is subject to the requirements covered by the exemption must be 
resolved before it submits a conformity package for any of the affected 
vehicles.
    NCDL countered with the observation that regardless of whether the 
vehicle is U.S. certified or not, the doors in all 1992 through 1996 
and 1998 Lamborghini Diablo Coupes are equipped with door beams, and in 
fact, all have the same replacement part number. NCDL further contended 
that it should be accorded the same temporary exemption from FMVSS No. 
214 as was granted to Lamborghini.
    In response, Lamborghini acknowledged that it was mistaken in 
stating that the doors on the non-U.S. certified vehicles differ from 
those on U.S.-certified models. Lamborghini noted, however, that 
modifications were needed to the fuel filler neck and gas tank to 
conform the vehicles not only to FMVSS No. 301 Fuel System Integrity 
(as discussed below), but to FMVSS Nos. 214 as well.
    Agency Analysis: In situations where the original manufacturer has 
been granted a temporary exemption from one or more requirements of 
applicable standards under 49 CFR part 555, an RI is still required to 
conform a vehicle covered by such an exemption to all applicable FMVSS, 
including requirements covered by the temporary exemption. This is 
because temporary exemptions under 49 CFR part 555 are granted only to 
the petitioning manufacturer, and cannot be exercised by any other 
party, including an RI. As a consequence, NCDL or other RIs must 
conform the subject non-U.S. certified Diablos to the dynamic impact 
requirements of the standard. Lamborghini's acknowledgment that non-
U.S. certified Lamborghini Diablos of the model years in question were 
equipped with the same doors as those installed on U.S.-certified 
vehicles eliminates the need for the vehicles to be conformed to the 
static requirements of the standard. NHTSA notes that the other 
modifications described by Lamborghini would not prelude the vehicles 
from being modified to conform to FMVSS No. 214 in a manner sufficient 
to be 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.
    (d) FMVSS No. 301 Fuel System Integrity: NCDL stated in the 
petition

[[Page 64761]]

that the vehicles, as originally manufactured, meet the requirements of 
this standard. Lamborghini countered that the vehicles do not conform 
and contended that modifications were needed to the fuel filler neck 
and gas tank to bring the vehicles into compliance with this standard 
as well as FMVSS Nos. 214 (as noted above).
    Agency Analysis: NHTSA concluded that non-U.S. certified 
Lamborghini Diablo passenger cars modified as described by Lamborghini 
will meet the requirements of FMVSS No. 301. The agency further notes 
that those modifications would not preclude 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.
    (e) 49 CFR Part 581 Bumper Standard: NCDL stated in the petition 
that U.S.-model bumper supports must be installed in the vehicles to 
meet the requirements of this standard. Lamborghini countered that 
Bumper Standard compliance issues are irrelevant to whether a vehicle 
can be deemed eligible for importation, as that decision must be 
predicated on the vehicle's capability of being modified to conform to 
the FMVSS alone, and the Bumper Standard is not an FMVSS.
    Agency Analysis: The agency agrees with Lamborghini that Bumper 
Standard compliance issues are not relevant to an import eligibility 
decision for the reasons given. The agency observes, however, that 
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 
petition.

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. 
VSP-416 is the vehicle eligibility number assigned to the 1996 
Lamborghini Diablo Coupe and Roadster and the 1997 Roadster, and VCP-26 
is the vehicle eligibility number assigned to the 1997 Lamborghini 
Diablo Coupe admissible under this notice of final decision.

Final Decision

    Accordingly, on the basis of the foregoing, NHTSA decided that 1996 
Lamborghini Diablo Coupe and Roadster passenger cars and 1997 
Lamborghini Diablo Roadster passenger cars that were not originally 
manufactured to comply with all applicable FMVSS, are substantially 
similar to 1996 Lamborghini Diablo Coupe and Roadster passenger cars 
and 1997 Lamborghini Roadster passenger cars originally manufactured 
for importation into and sale in the United States and certified under 
49 U.S.C. 30115, and are capable of being readily altered to conform to 
all applicable FMVSS. In addition, the agency decided that 1997 
Lamborghini Diablo Coupe passenger cars that were not originally 
manufactured to comply with all applicable 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.

    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.

    Issued on: October 26, 2006.
Jeffrey Giuseppe,
Acting Director, Office of Vehicle Safety Compliance.
[FR Doc. E6-18518 Filed 11-2-06; 8:45 am]
BILLING CODE 4910-59-P