Denial of Petitions for Import Eligibility for Nonconforming 2001-2002 Mitsubishi Evolution VII and 2003 Mitsubishi Evolution VIII Left Hand Drive Passenger Cars, 64761-64764 [E6-18520]
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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.
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Conclusion
In view of the above considerations,
NHTSA decided to grant the petition.
15:24 Nov 02, 2006
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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
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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
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Federal Register / Vol. 71, No. 213 / Friday, November 3, 2006 / Notices
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. The agency then
publishes this decision in the Federal
Register.
On February 10, 2003, G&K
Automotive Conversion, Inc., of Santa
Ana, California (G&K) (Registered
Importer 90–007) petitioned the agency
to decide that 2001–2002 Mitsubishi
Evolution VII LHD passenger cars are
eligible for importation. On April 14,
2003, G&K petitioned NHTSA to decide
that 2003 Mitsubishi Evolution VIII LHD
passenger cars are eligible for
importation. NHTSA published a notice
of the petition for the 2003 Mitsubishi
Evolution VIII LHD passenger cars on
June 30, 2003 (68 FR 38750) and a
notice of the petition for the 2001–2002
Mitsubishi Evolution VII LHD passenger
cars on September 3, 2003 (68 FR
52454). The notices thoroughly
described the petitions and solicited
public comments thereon. The agency
received two comments in response to
the notices. The first of these was from
an anonymous source. The anonymous
commenter expressed the belief that the
petition for the 2003 Mitsubishi
Evolution VIII LHD passenger cars was
defective in that it did not remotely
demonstrate that the non-U.S. certified
vehicles were substantially similar to
any U.S. certified vehicles, and that the
petition should therefore be denied.
The second comment was from
Mitsubishi Motors North America, Inc.
(Mitsubishi), the U.S. representative of
the vehicles’ original manufacturer. In
its comments, Mitsubishi raised issues
concerning the basis for both petitions,
and identified details it contended G&K
had overlooked in describing alterations
needed to conform the vehicles to
certain of the FMVSS. The agency
accorded G&K an opportunity to
respond to Mitsubishi’s comments, and
also asked G&K to provide additional
data, views, and arguments with regard
to certain issues raised in the petitions.
After G&K responded, the agency gave
Mitsubishi an opportunity to rebut those
responses. Mitsubishi requested, and
was granted, confidentially under 49
CFR part 512 with regard to certain
information that it submitted as part of
its comments. The comments,
responses, and rebuttals are summarized
below, together with NHTSA’s analysis
of each matter at issue.
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1. Attempted Reliance on Eligibility
Decision Covering 2003 Mitsubishi
Evolution VIII Passenger Cars To
Establish Eligibility for 2001 and 2002
Mitsubishi Evolution VII LHD
Passenger Cars
Arguments Raised
G&K informed NHTSA that it
intended to make a showing that the
Evolution VII passenger cars are eligible
for importation without the need for
providing crashworthiness or crash
avoidance test data normally required to
demonstrate eligibility under 49 U.S.C.
30141(a)(1)(B). To accomplish this, G&K
stated that it would first show that the
Evolution VIII passenger cars are
eligible for importation through a
petition filed under 49 U.S.C.
30141(a)(1)(A), establishing that those
vehicles are substantially similar to
vehicles of the same make, model and
model year that were manufactured for
importation into, and sale in, the United
States. G&K stated that it would then
compare the Evolution VII passenger
cars (which have no substantially
similar U.S.-certified counterparts) to
the Evolution VIII passenger cars
determined eligible for importation, to
establish that the Evolution VII
passenger cars have safety features that
comply with, or are capable of being
altered to comply with, all applicable
FMVSS, as is necessary to achieve
import eligibility under 49 U.S.C.
30141(a)(1)(B).
Agency’s Analysis
The approach proposed by G&K is
similar in concept to how a vehicle can
be determined eligible for importation
under 49 U.S.C. 30141(a)(1)(A) based on
its substantial similarity to a vehicle of
the same make, model, and model year
that was certified by its manufacturer as
conforming to all applicable FMVSS.
However, because Mitsubishi never
certified model year 2001 and 2002
Evolution VII passenger cars as
conforming to all applicable FMVSS,
the only basis for finding non-U.S.
certified versions of those vehicles
eligible for importation would be under
49 U.S.C. 30141(a)(1)(B). To establish
import eligibility under that section, a
petitioner must demonstrate that the
vehicle has safety features that 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. With respect to those
FMVSS for which crash testing would
otherwise be required, other evidence
the agency will consider may include a
comparison to a vehicle that has already
been determined eligible for
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importation. To the extent that it is
dependent on a finding that Evolution
VIII passenger cars are eligible for
importation, G&K’s attempt to establish
import eligibility for Evolution VII
models cannot succeed, because, as set
forth below, the agency has concluded
that Evolution VIII are not eligible in
their own right.
2. Whether the Non-U.S. Certified 2003
Evolution VIII Is Substantially Similar
to the U.S.-Certified Model
In its petition covering the 2003
Evolution VIII, G&K contended that the
differences between the non-U.S.
certified version of that vehicle and its
U.S.-certified counterpart are mostly
cosmetic. Mitsubishi disagreed. Both
Mitsubishi and the anonymous
commenter pointed out that the very
press release announcing the
introduction of the Evolution VIII into
the U.S. market, which was included by
G&K as attachment in support of its
petition, states that there are significant
structural differences between the nonU.S. certified 2003 Evolution VIII and
its U.S.-certified counterpart, and
further described the U.S.-certified
version as having been developed
exclusively for the U.S. market to meet
crashworthiness and emissions
requirements. Mitsubishi also stated
that structural differences alone
preclude a finding that the
nonconforming 2003 Evolution VIII
vehicles are readily capable of being
altered to comply with all applicable
FMVSS.
Agency Analysis
Based on its evaluation of the petition
and the comments received, NHTSA
concluded that there are significant
structural differences between the U.S.certified and the non-U.S. certified
versions of the 2003 Evolution VIII,
precluding the non-U.S. certified model
from being found eligible for
importation under 49 U.S.C.
30141(a)(1)(A). These differences are
discussed in greater detail below with
regard to FMVSS Nos. 208 and 214
compliance issues.
3. Issues Involving Specific Standards
Mitsubishi made specific comments
regarding the capability of the non-U.S.
certified 2003 Evolution VIII passenger
cars to be modified to meet the
requirements of certain standards. A
discussion of these comments is set
forth below, in the numerical order of
the standards to which the comments
relate.
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(a) FMVSS No. 118 Power-Operated
Window, Partition, and Roof Panel
Systems
The petition states that the vehicles
meet the requirements of FMVSS No.
118 as originally manufactured.
Mitsubishi asserted that this is
incorrect, and that the power window
switch, door wiring, ECU, power
window regulator, and other vehicle
systems must be modified or replaced to
meet the requirements of the standard.
G&K responded by expressing the belief
that the only modification needed to
conform the non-U.S. certified vehicles
to the standard was to reprogram the
vehicle’s microprocessor-operated
Simplified Wiring System (SWS).
Mitsubishi countered by explaining that
the SWS system in the non-U.S.
certified vehicles cannot be
reprogrammed to comply with the
standard, and that replacement of the
Electronic Time & Alarm Control
System and appropriate wiring harness
were required instead. G&K disputed
Mitsubishi’s claim that the SWS system
is not programmable by citing contrary
evidence that it found in an
unidentified ‘‘service manual’’.
Agency Analysis
NHTSA was not persuaded by G&K’s
citation to the service manual that the
power-operated window systems could
be conformed to the standard by
reprogramming alone. Instead, the
agency concluded that replacement of
the power window switches, power
window regulators, Electronic Time &
Alarm Control System and its software,
and appropriate wiring harnesses would
be required for the vehicles to conform
to the standard.
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(b) FMVSS No. 201 Occupant Protection
in Interior Impact
The petition states that no structural
modifications to the dash area are
necessary to achieve compliance with
this standard. Mitsubishi asserted that
this is incorrect because there are no
energy absorbing materials in the
headliners of non-U.S. certified vehicles
as required by the standard.
In response, G&K agreed that six
pieces of energy absorbing material,
which it identified by part number,
would need to be installed in the
headliner area to conform non-U.S.
certified vehicles to the standard.
Mitsubishi concurred that this
modification would need to be made,
but noted additional parts necessary to
conform the vehicles to the standard
that were omitted by G&K. Those
additional parts are the headliner and
center pillar upper trim. G&K stated that
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it is prepared to install the readily
attachable headliner pieces of energy
absorbing material, if necessary to
achieve conformance to the standard.
Agency Analysis
In view of Mitsubishi’s comments and
G&K’s responses, NHTSA concluded
that six pieces of energy absorbing
material would have to be installed in
the headliner area, together with the
headliner itself and the center pillar
upper trim, for non-U.S. certified
vehicles to be brought into conformity
with the standard.
(c) FMVSS No. 208 Occupant Crash
Protection
The petition states that the non-U.S.
certified vehicles meet the requirements
of this standard as originally
manufactured. Asserting that this is
incorrect, Mitsubishi contended that
there are differences in the body
structure between U.S.-certified and
non-U.S. certified Evolution VIII
passenger cars that affect compliance
with the standard. Mitsubishi also
claimed that the non-U.S. certified
vehicles are not fitted with knee
protectors and have a different type of
front deck cross-pipe, instrument panel
undercover, and glove box, all of which
have bearing on Standard 208
compliance. G&K countered by
observing that three components in the
area of the dashboard (the glovebox,
cover dash under, and center
compartment) have part numbers that
are identical for both U.S.-certified and
non-U.S. certified Evolution VIII
passenger cars.
In response, Mitsubishi reemphasized
its contention that there are significant
differences between U.S.-certified and
non-U.S. certified Evolution VIII
passenger cars with regard to the
instrument panel undercover and glove
box. Mitsubishi also noted that G&K
failed to address its observation that the
non-U.S. certified vehicles are lacking
the knee protectors that are present in
the U.S.-certified vehicles.
Mitsubishi further noted that G&K
failed to specify that the body structure
of the U.S.-certified vehicles has to be
strengthened to assure conformance
with FMVSS Nos. 208 and 214. To
comply with those standards,
Mitsubishi contended that the U.S.certified Evolution VIII is reinforced at
the front left side member (A-pillar) by
the addition of three stamped steel press
plates that are not included in the body
structure of the non-U.S. certified
vehicle. Mitsubishi also contended that
the left and right body side sills have
four additional stamped steel
reinforcement plates, and that both the
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left and right center pillars have two
additional stamped steel plates in the
floorboard area, all of which affect
compliance with FMVSS No. 208 and
are required to achieve compliance with
FMVSS No. 214.
Mitsubishi stated that the U.S.certified vehicle also has a specially
tuned ECU algorithm, because the
vehicle has many reinforced
components that are not included in
non-U.S. certified versions of the
Evolution VIII. To assure compliance
with FMVSS No. 208 (as well as FMVSS
No. 214), Mitsubishi postulated that
G&K would have to reinforce the front
left side member (A-pillar in the engine
compartment area), the body side sill
outer shell, as well as the inner portion
of the center pillar (B-pillar). Once these
reinforcements were completed,
Mitsubishi contended that G&K would
then have to perform technically
complex ECU algorithm matching.
Mitsubishi also asserted that G&K
should be required to replace each of
the above-described nonconforming
vehicle parts with the corresponding
parts that are equipped on U.S.-certified
models. Mitsubishi added that because
the installation of the reinforcements
detailed above requires welding and
involves structural changes necessary
for conformance to FMVSS Nos. 208
and 214, G&K should be required to
submit test or other data to demonstrate
that its welded reinforcements actually
are sufficient to meet the exacting
requirements of those standards.
Finally, because of the critical safety
implications of the complex ECU
algorithm matching, Mitsubishi asserted
that G&K should be required to submit
test data showing that its modifications
to the ECU algorithm produce a vehicle
that fully complies with FMVSS No.
208.
G&K responded by simply restating
that the glovebox, cover dash under, and
center compartment have part numbers
that are identical for both the U.S.certified and the non-U.S. certified
Evolution VIII passenger cars. G&K also
cited maintenance manual diagrams and
photographs that it claimed illustrate
that the internal structure of the U.S.certified and the non-U.S. certified
Evolution VIII passenger cars are
substantially similar.
Agency Analysis
NHTSA accorded G&K the
opportunity to show that the body
structures on the U.S.-certified and the
non-U.S. certified vehicles that are
pertinent to compliance with this
standard are substantially similar by
providing cutout sections or x-ray
images for examination by NHTSA
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engineers. Although it stated it would
do so, G&K never provided this material
to the agency. Based on its review of the
manufacturer’s detailed drawings of
both the U.S.-certified and the non-U.S.
certified versions of Evolution VIII
passenger cars, NHTSA has concluded
that the relevant structures of the
vehicles are not substantially similar
and would not perform the same in
FMVSS No. 208 crashworthiness
testing.
(d) FMVSS No. 209 Seat Belt
Assemblies
The petition stated that the vehicles
meet the requirements of FMVSS No.
209 as originally manufactured.
Mitsubishi asserted that this is incorrect
and that the seat belt assemblies must be
replaced with components that meet the
requirement of the standard. G&K
responded by admitting that the seat
belts in the front outboard seating
positions must be replaced and that
each vehicle must be inspected
individually to ascertain the need for
other seat belts to be replaced to achieve
compliance with this standard. In its
next comment, Mitsubishi agreed that
the front belt seat assemblies will have
to be replaced, but observed that part
numbers cited by G&K do not comprise
the entirety of the seat belt assemblies.
Mitsubishi also contended that G&K
should be required to replace the entire
front seat belt assemblies to conform the
non-U.S. certified vehicle to the
standard. G&K responded by reiterating
its plan to simply replace the front seat
belt assemblies based on the part
numbers assigned to those components.
G&K further asserted that the three rear
seat belt assemblies in the non-U.S.
certified Evolution VIII passenger cars
meet the requirements of FMVSS No.
209 as originally manufactured.
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Agency Analysis
Based on the above exchange, NHTSA
concluded that seat belt assembly
components in all non-U.S. certified
Evolution VIII passenger cars would
have to be inspected, and any non-U.S.model seat belt components would have
to be replaced with U.S.-model
components on vehicles not already so
equipped.
(e) FMVSS No. 214 Side Impact
Protection
The petition stated that the vehicles
meet the requirements of FMVSS No.
214 as originally manufactured.
Mitsubishi asserted that this is incorrect
and that non-U.S. certified vehicles lack
chest protecting energy absorbing pads
in the interior door trim and do not have
side impact bars specifically reinforced
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to comply with the standard. G&K
responded by stating that all vehicles
must be inspected for the presence of
U.S.-model door bars and chest
protecting pads, and that vehicles
without such components must have
them installed to achieve compliance
with this standard. Mitsubishi then
observed that G&K did not identify the
criteria that it will use for determining
whether it is necessary to add the
missing door bars. Mitsubishi also
emphasized that G&K had omitted any
reference to the fact that the nonconforming vehicles lack protecting
pads in the rear door area and had
neglected to mention any of the body
structure modifications pertinent to
compliance with both FMVSS Nos. 208
and 214.
Mitsubishi stated in summation that
‘‘G&K should be required to add rear
door area protecting pads, and should
be required to install crossbars identical
to the ones in U.S.-certified Evolution
VIII vehicles in all nonconforming
vehicles that do not have the same
crossbars as are in US.-certified models.
In addition, because these modifications
are structural and require welding—as
would the modifications pertinent to
both FMVSS Nos. 208 and 214 (which
were discussed above in connection
with FMVSS No. 208)—G&K should be
required to submit test or other data that
demonstrate that its modifications
would meet the critical safety
requirements of FMVSS No. 214.’’
G&K responded with the observation
that NHTSA has allowed the installation
of welded-in door bars in vehicles
granted import eligibility under 49
U.S.C. 30141(a)(1)(A) in many instances
without the need for providing
crashworthiness test reports.
Agency Analysis
NHTSA accorded G&K the
opportunity to show that the body
structures on the U.S.-certified and the
non-U.S. certified vehicles that are
pertinent to compliance with this
standard are substantially similar by
providing cutout sections or x-ray
images for examination by NHTSA
engineers. Although it stated it would
do so, G&K never provided this material
to the agency. Based on its review of the
manufacturer’s detailed drawings of
both the U.S.-certified and the non-U.S.
certified versions of Evolution VIII
passenger cars, NHTSA has concluded
that the relevant structures of the
vehicles are not substantially similar
and would not perform the same in
FMVSS No. 214 crashworthiness
testing.
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(f) FMVSS No. 225 Child Restraint
Anchorage Systems
The petition stated that the vehicles
must be modified to comply with the
requirements of FMVSS No. 225, but
provided no description of those
modifications. Mitsubishi observed that
by failing to provide that description,
G&K had not met its burden for
establishing that the vehicles are
capable of being readily modified to
meet the requirements of the standard.
Agency Analysis
G&K did not provide sufficient data,
views, and arguments for NHTSA to
conclude that non-U.S. certified
Evolution VIII passenger cars are
capable of being readily altered to
conform to FMVSS No. 225.
(g) FMVSS No. 301 Fuel System
Integrity
The petition stated the vehicles must
be modified to comply with
requirements of FMVSS No. 301, but
provided no description of those
modifications. Mitsubishi responded
that absent such a description, G&K had
not met its burden for establishing that
the vehicles are capable of being readily
modified to meet the requirements of
the standard.
Agency Analysis
G&K did not provide sufficient data,
views, and arguments for NHTSA to
conclude that non-U.S. certified
Evolution VIII passenger cars are
capable of being readily altered to
conform to FMVSS No. 301.
Decision
Based on the foregoing, NHTSA
concluded that the petitions do not
clearly demonstrate that the subject
vehicles are eligible for importation.
The petitions were accordingly denied
under 49 CFR 593.7(e).
As provided in 49 CFR 593.7, NHTSA
will not consider a new import
eligibility petition covering the vehicles
that are the subject of the petitions until
at least three months from the date of
this notice.
Authority: 49 U.S.C. 30141(a)(1) and (b)(1);
49 CFR 593.7; delegations of authority at 49
CFR 1.50 and 501.8.
Issued on: October 27, 2006.
Jeffrey Giuseppe,
Acting Director, Office of Vehicle Safety
Compliance.
[FR Doc. E6–18520 Filed 11–2–06; 8:45 am]
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[Federal Register Volume 71, Number 213 (Friday, November 3, 2006)]
[Notices]
[Pages 64761-64764]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-18520]
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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
AGENCY: 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.
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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 left-hand
drive (LHD) 2001-2002 Mitsubishi 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
[[Page 64762]]
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.
The agency then publishes this decision in the Federal Register.
On February 10, 2003, G&K Automotive Conversion, Inc., of Santa
Ana, California (G&K) (Registered Importer 90-007) petitioned the
agency to decide that 2001-2002 Mitsubishi Evolution VII LHD passenger
cars are eligible for importation. On April 14, 2003, G&K petitioned
NHTSA to decide that 2003 Mitsubishi Evolution VIII LHD passenger cars
are eligible for importation. NHTSA published a notice of the petition
for the 2003 Mitsubishi Evolution VIII LHD passenger cars on June 30,
2003 (68 FR 38750) and a notice of the petition for the 2001-2002
Mitsubishi Evolution VII LHD passenger cars on September 3, 2003 (68 FR
52454). The notices thoroughly described the petitions and solicited
public comments thereon. The agency received two comments in response
to the notices. The first of these was from an anonymous source. The
anonymous commenter expressed the belief that the petition for the 2003
Mitsubishi Evolution VIII LHD passenger cars was defective in that it
did not remotely demonstrate that the non-U.S. certified vehicles were
substantially similar to any U.S. certified vehicles, and that the
petition should therefore be denied.
The second comment was from Mitsubishi Motors North America, Inc.
(Mitsubishi), the U.S. representative of the vehicles' original
manufacturer. In its comments, Mitsubishi raised issues concerning the
basis for both petitions, and identified details it contended G&K had
overlooked in describing alterations needed to conform the vehicles to
certain of the FMVSS. The agency accorded G&K an opportunity to respond
to Mitsubishi's comments, and also asked G&K to provide additional
data, views, and arguments with regard to certain issues raised in the
petitions. After G&K responded, the agency gave Mitsubishi an
opportunity to rebut those responses. Mitsubishi requested, and was
granted, confidentially under 49 CFR part 512 with regard to certain
information that it submitted as part of its comments. The comments,
responses, and rebuttals are summarized below, together with NHTSA's
analysis of each matter at issue.
1. Attempted Reliance on Eligibility Decision Covering 2003 Mitsubishi
Evolution VIII Passenger Cars To Establish Eligibility for 2001 and
2002 Mitsubishi Evolution VII LHD Passenger Cars
Arguments Raised
G&K informed NHTSA that it intended to make a showing that the
Evolution VII passenger cars are eligible for importation without the
need for providing crashworthiness or crash avoidance test data
normally required to demonstrate eligibility under 49 U.S.C.
30141(a)(1)(B). To accomplish this, G&K stated that it would first show
that the Evolution VIII passenger cars are eligible for importation
through a petition filed under 49 U.S.C. 30141(a)(1)(A), establishing
that those vehicles are substantially similar to vehicles of the same
make, model and model year that were manufactured for importation into,
and sale in, the United States. G&K stated that it would then compare
the Evolution VII passenger cars (which have no substantially similar
U.S.-certified counterparts) to the Evolution VIII passenger cars
determined eligible for importation, to establish that the Evolution
VII passenger cars have safety features that comply with, or are
capable of being altered to comply with, all applicable FMVSS, as is
necessary to achieve import eligibility under 49 U.S.C. 30141(a)(1)(B).
Agency's Analysis
The approach proposed by G&K is similar in concept to how a vehicle
can be determined eligible for importation under 49 U.S.C.
30141(a)(1)(A) based on its substantial similarity to a vehicle of the
same make, model, and model year that was certified by its manufacturer
as conforming to all applicable FMVSS. However, because Mitsubishi
never certified model year 2001 and 2002 Evolution VII passenger cars
as conforming to all applicable FMVSS, the only basis for finding non-
U.S. certified versions of those vehicles eligible for importation
would be under 49 U.S.C. 30141(a)(1)(B). To establish import
eligibility under that section, a petitioner must demonstrate that the
vehicle has safety features that 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. With
respect to those FMVSS for which crash testing would otherwise be
required, other evidence the agency will consider may include a
comparison to a vehicle that has already been determined eligible for
importation. To the extent that it is dependent on a finding that
Evolution VIII passenger cars are eligible for importation, G&K's
attempt to establish import eligibility for Evolution VII models cannot
succeed, because, as set forth below, the agency has concluded that
Evolution VIII are not eligible in their own right.
2. Whether the Non-U.S. Certified 2003 Evolution VIII Is Substantially
Similar to the U.S.-Certified Model
In its petition covering the 2003 Evolution VIII, G&K contended
that the differences between the non-U.S. certified version of that
vehicle and its U.S.-certified counterpart are mostly cosmetic.
Mitsubishi disagreed. Both Mitsubishi and the anonymous commenter
pointed out that the very press release announcing the introduction of
the Evolution VIII into the U.S. market, which was included by G&K as
attachment in support of its petition, states that there are
significant structural differences between the non-U.S. certified 2003
Evolution VIII and its U.S.-certified counterpart, and further
described the U.S.-certified version as having been developed
exclusively for the U.S. market to meet crashworthiness and emissions
requirements. Mitsubishi also stated that structural differences alone
preclude a finding that the nonconforming 2003 Evolution VIII vehicles
are readily capable of being altered to comply with all applicable
FMVSS.
Agency Analysis
Based on its evaluation of the petition and the comments received,
NHTSA concluded that there are significant structural differences
between the U.S.-certified and the non-U.S. certified versions of the
2003 Evolution VIII, precluding the non-U.S. certified model from being
found eligible for importation under 49 U.S.C. 30141(a)(1)(A). These
differences are discussed in greater detail below with regard to FMVSS
Nos. 208 and 214 compliance issues.
3. Issues Involving Specific Standards
Mitsubishi made specific comments regarding the capability of the
non-U.S. certified 2003 Evolution VIII passenger cars to be modified to
meet the requirements of certain standards. A discussion of these
comments is set forth below, in the numerical order of the standards to
which the comments relate.
[[Page 64763]]
(a) FMVSS No. 118 Power-Operated Window, Partition, and Roof Panel
Systems
The petition states that the vehicles meet the requirements of
FMVSS No. 118 as originally manufactured. Mitsubishi asserted that this
is incorrect, and that the power window switch, door wiring, ECU, power
window regulator, and other vehicle systems must be modified or
replaced to meet the requirements of the standard. G&K responded by
expressing the belief that the only modification needed to conform the
non-U.S. certified vehicles to the standard was to reprogram the
vehicle's microprocessor-operated Simplified Wiring System (SWS).
Mitsubishi countered by explaining that the SWS system in the non-U.S.
certified vehicles cannot be reprogrammed to comply with the standard,
and that replacement of the Electronic Time & Alarm Control System and
appropriate wiring harness were required instead. G&K disputed
Mitsubishi's claim that the SWS system is not programmable by citing
contrary evidence that it found in an unidentified ``service manual''.
Agency Analysis
NHTSA was not persuaded by G&K's citation to the service manual
that the power-operated window systems could be conformed to the
standard by reprogramming alone. Instead, the agency concluded that
replacement of the power window switches, power window regulators,
Electronic Time & Alarm Control System and its software, and
appropriate wiring harnesses would be required for the vehicles to
conform to the standard.
(b) FMVSS No. 201 Occupant Protection in Interior Impact
The petition states that no structural modifications to the dash
area are necessary to achieve compliance with this standard. Mitsubishi
asserted that this is incorrect because there are no energy absorbing
materials in the headliners of non-U.S. certified vehicles as required
by the standard.
In response, G&K agreed that six pieces of energy absorbing
material, which it identified by part number, would need to be
installed in the headliner area to conform non-U.S. certified vehicles
to the standard. Mitsubishi concurred that this modification would need
to be made, but noted additional parts necessary to conform the
vehicles to the standard that were omitted by G&K. Those additional
parts are the headliner and center pillar upper trim. G&K stated that
it is prepared to install the readily attachable headliner pieces of
energy absorbing material, if necessary to achieve conformance to the
standard.
Agency Analysis
In view of Mitsubishi's comments and G&K's responses, NHTSA
concluded that six pieces of energy absorbing material would have to be
installed in the headliner area, together with the headliner itself and
the center pillar upper trim, for non-U.S. certified vehicles to be
brought into conformity with the standard.
(c) FMVSS No. 208 Occupant Crash Protection
The petition states that the non-U.S. certified vehicles meet the
requirements of this standard as originally manufactured. Asserting
that this is incorrect, Mitsubishi contended that there are differences
in the body structure between U.S.-certified and non-U.S. certified
Evolution VIII passenger cars that affect compliance with the standard.
Mitsubishi also claimed that the non-U.S. certified vehicles are not
fitted with knee protectors and have a different type of front deck
cross-pipe, instrument panel undercover, and glove box, all of which
have bearing on Standard 208 compliance. G&K countered by observing
that three components in the area of the dashboard (the glovebox, cover
dash under, and center compartment) have part numbers that are
identical for both U.S.-certified and non-U.S. certified Evolution VIII
passenger cars.
In response, Mitsubishi reemphasized its contention that there are
significant differences between U.S.-certified and non-U.S. certified
Evolution VIII passenger cars with regard to the instrument panel
undercover and glove box. Mitsubishi also noted that G&K failed to
address its observation that the non-U.S. certified vehicles are
lacking the knee protectors that are present in the U.S.-certified
vehicles.
Mitsubishi further noted that G&K failed to specify that the body
structure of the U.S.-certified vehicles has to be strengthened to
assure conformance with FMVSS Nos. 208 and 214. To comply with those
standards, Mitsubishi contended that the U.S.-certified Evolution VIII
is reinforced at the front left side member (A-pillar) by the addition
of three stamped steel press plates that are not included in the body
structure of the non-U.S. certified vehicle. Mitsubishi also contended
that the left and right body side sills have four additional stamped
steel reinforcement plates, and that both the left and right center
pillars have two additional stamped steel plates in the floorboard
area, all of which affect compliance with FMVSS No. 208 and are
required to achieve compliance with FMVSS No. 214.
Mitsubishi stated that the U.S.-certified vehicle also has a
specially tuned ECU algorithm, because the vehicle has many reinforced
components that are not included in non-U.S. certified versions of the
Evolution VIII. To assure compliance with FMVSS No. 208 (as well as
FMVSS No. 214), Mitsubishi postulated that G&K would have to reinforce
the front left side member (A-pillar in the engine compartment area),
the body side sill outer shell, as well as the inner portion of the
center pillar (B-pillar). Once these reinforcements were completed,
Mitsubishi contended that G&K would then have to perform technically
complex ECU algorithm matching.
Mitsubishi also asserted that G&K should be required to replace
each of the above-described nonconforming vehicle parts with the
corresponding parts that are equipped on U.S.-certified models.
Mitsubishi added that because the installation of the reinforcements
detailed above requires welding and involves structural changes
necessary for conformance to FMVSS Nos. 208 and 214, G&K should be
required to submit test or other data to demonstrate that its welded
reinforcements actually are sufficient to meet the exacting
requirements of those standards. Finally, because of the critical
safety implications of the complex ECU algorithm matching, Mitsubishi
asserted that G&K should be required to submit test data showing that
its modifications to the ECU algorithm produce a vehicle that fully
complies with FMVSS No. 208.
G&K responded by simply restating that the glovebox, cover dash
under, and center compartment have part numbers that are identical for
both the U.S.-certified and the non-U.S. certified Evolution VIII
passenger cars. G&K also cited maintenance manual diagrams and
photographs that it claimed illustrate that the internal structure of
the U.S.-certified and the non-U.S. certified Evolution VIII passenger
cars are substantially similar.
Agency Analysis
NHTSA accorded G&K the opportunity to show that the body structures
on the U.S.-certified and the non-U.S. certified vehicles that are
pertinent to compliance with this standard are substantially similar by
providing cutout sections or x-ray images for examination by NHTSA
[[Page 64764]]
engineers. Although it stated it would do so, G&K never provided this
material to the agency. Based on its review of the manufacturer's
detailed drawings of both the U.S.-certified and the non-U.S. certified
versions of Evolution VIII passenger cars, NHTSA has concluded that the
relevant structures of the vehicles are not substantially similar and
would not perform the same in FMVSS No. 208 crashworthiness testing.
(d) FMVSS No. 209 Seat Belt Assemblies
The petition stated that the vehicles meet the requirements of
FMVSS No. 209 as originally manufactured. Mitsubishi asserted that this
is incorrect and that the seat belt assemblies must be replaced with
components that meet the requirement of the standard. G&K responded by
admitting that the seat belts in the front outboard seating positions
must be replaced and that each vehicle must be inspected individually
to ascertain the need for other seat belts to be replaced to achieve
compliance with this standard. In its next comment, Mitsubishi agreed
that the front belt seat assemblies will have to be replaced, but
observed that part numbers cited by G&K do not comprise the entirety of
the seat belt assemblies. Mitsubishi also contended that G&K should be
required to replace the entire front seat belt assemblies to conform
the non-U.S. certified vehicle to the standard. G&K responded by
reiterating its plan to simply replace the front seat belt assemblies
based on the part numbers assigned to those components. G&K further
asserted that the three rear seat belt assemblies in the non-U.S.
certified Evolution VIII passenger cars meet the requirements of FMVSS
No. 209 as originally manufactured.
Agency Analysis
Based on the above exchange, NHTSA concluded that seat belt
assembly components in all non-U.S. certified Evolution VIII passenger
cars would have to be inspected, and any non-U.S.-model seat belt
components would have to be replaced with U.S.-model components on
vehicles not already so equipped.
(e) FMVSS No. 214 Side Impact Protection
The petition stated that the vehicles meet the requirements of
FMVSS No. 214 as originally manufactured. Mitsubishi asserted that this
is incorrect and that non-U.S. certified vehicles lack chest protecting
energy absorbing pads in the interior door trim and do not have side
impact bars specifically reinforced to comply with the standard. G&K
responded by stating that all vehicles must be inspected for the
presence of U.S.-model door bars and chest protecting pads, and that
vehicles without such components must have them installed to achieve
compliance with this standard. Mitsubishi then observed that G&K did
not identify the criteria that it will use for determining whether it
is necessary to add the missing door bars. Mitsubishi also emphasized
that G&K had omitted any reference to the fact that the non-conforming
vehicles lack protecting pads in the rear door area and had neglected
to mention any of the body structure modifications pertinent to
compliance with both FMVSS Nos. 208 and 214.
Mitsubishi stated in summation that ``G&K should be required to add
rear door area protecting pads, and should be required to install
crossbars identical to the ones in U.S.-certified Evolution VIII
vehicles in all nonconforming vehicles that do not have the same
crossbars as are in US.-certified models. In addition, because these
modifications are structural and require welding--as would the
modifications pertinent to both FMVSS Nos. 208 and 214 (which were
discussed above in connection with FMVSS No. 208)--G&K should be
required to submit test or other data that demonstrate that its
modifications would meet the critical safety requirements of FMVSS No.
214.''
G&K responded with the observation that NHTSA has allowed the
installation of welded-in door bars in vehicles granted import
eligibility under 49 U.S.C. 30141(a)(1)(A) in many instances without
the need for providing crashworthiness test reports.
Agency Analysis
NHTSA accorded G&K the opportunity to show that the body structures
on the U.S.-certified and the non-U.S. certified vehicles that are
pertinent to compliance with this standard are substantially similar by
providing cutout sections or x-ray images for examination by NHTSA
engineers. Although it stated it would do so, G&K never provided this
material to the agency. Based on its review of the manufacturer's
detailed drawings of both the U.S.-certified and the non-U.S. certified
versions of Evolution VIII passenger cars, NHTSA has concluded that the
relevant structures of the vehicles are not substantially similar and
would not perform the same in FMVSS No. 214 crashworthiness testing.
(f) FMVSS No. 225 Child Restraint Anchorage Systems
The petition stated that the vehicles must be modified to comply
with the requirements of FMVSS No. 225, but provided no description of
those modifications. Mitsubishi observed that by failing to provide
that description, G&K had not met its burden for establishing that the
vehicles are capable of being readily modified to meet the requirements
of the standard.
Agency Analysis
G&K did not provide sufficient data, views, and arguments for NHTSA
to conclude that non-U.S. certified Evolution VIII passenger cars are
capable of being readily altered to conform to FMVSS No. 225.
(g) FMVSS No. 301 Fuel System Integrity
The petition stated the vehicles must be modified to comply with
requirements of FMVSS No. 301, but provided no description of those
modifications. Mitsubishi responded that absent such a description, G&K
had not met its burden for establishing that the vehicles are capable
of being readily modified to meet the requirements of the standard.
Agency Analysis
G&K did not provide sufficient data, views, and arguments for NHTSA
to conclude that non-U.S. certified Evolution VIII passenger cars are
capable of being readily altered to conform to FMVSS No. 301.
Decision
Based on the foregoing, NHTSA concluded that the petitions do not
clearly demonstrate that the subject vehicles are eligible for
importation. The petitions were accordingly denied under 49 CFR
593.7(e).
As provided in 49 CFR 593.7, NHTSA will not consider a new import
eligibility petition covering the vehicles that are the subject of the
petitions until at least three months from the date of this notice.
Authority: 49 U.S.C. 30141(a)(1) and (b)(1); 49 CFR 593.7;
delegations of authority at 49 CFR 1.50 and 501.8.
Issued on: October 27, 2006.
Jeffrey Giuseppe,
Acting Director, Office of Vehicle Safety Compliance.
[FR Doc. E6-18520 Filed 11-2-06; 8:45 am]
BILLING CODE 4910-59-P
